EAT holds that complaint of defamation in the workplace could potentially constitute a protected disclosure (Mr Ibrahim v HCA International Ltd UKEAT/0105/18/BA)

In the case of Mr Ibrahim v HCA International Ltd [UKEAT/0105/18/BA], Mr Ibrahim lost his appeal at the Employment Appeal Tribunal because there was no ‘public interest’ element to his whistleblowing claim. However, the Employment Appeal Tribunal did find that the ‘legal obligations’ referred to in the whistleblowing legislation could include tortious and statutory duties.

The facts in Ibrahim v HCA International Ltd

The Claimant was an interpreter for HCA International Limited (“HCA”) at a private hospital.  In 2016 rumours were circulating amongst patients that the Claimant was responsible for breaches of patient confidentiality.  The Claimant asked for the rumours to be investigated in order for him to clear his name of any wrong-doing. The rumours were investigated and HCA rejected his complaint.  When he was later dismissed, he brought a claim in the Employment Tribunal for suffering a detriment for having made a protected disclosure (also known as ‘whistleblowing’) under s. 47B of the Employment Rights Act 1996 (the ‘ERA Act’).

The decision of the Employment Tribunal

The Employment Tribunal dismissed the Claimant’s whistleblowing claim on two grounds. Firstly, they held that a complaint that false rumours had been spread was not a disclosure of information showing a breach of a legal obligation as required by s.43B(1)(b) of the ERA Act. Secondly, they held that the Claimant’s complaint had not been made ‘in the public interest’ (as required by s.43(B)(1) of the ERA Act).  To satisfy the test contained in s.43(B)(1), an Employment Tribunal has to ask itself whether the worker believed that the disclosure they were making was in the public interest, and whether, if so, that belief was reasonable.  The Employment Tribunal held the Claimant’s disclosure had been made with a view to clearing his name and re-establishing his reputation, not in the public interest. Mr Ibrahim appealed to the Employment Appeal Tribunal.

The decision of the Employment Appeal Tribunal

The EAT held that the Employment Tribunal had erred in finding that the subject matter of the Claimant’s complaint did not come within s.43B(1)(b) (which refers to a breach of a ‘legal obligation’).  The EAT stated that a breach of a legal obligation could include tortious duties, such as defamation, and breaches of statutory duty, such as those contained in the Defamation Act 2013. The Claimant’s complaint was essentially that he was being defamed and, thus, the Employment Tribunal should have found that S.43B(1)(b) was satisfied.

However, they went on to dismiss the Claimant’s second ground of appeal and instead upheld the Employment Tribunal’s conclusion that the Claimant did not believe his complaint raised a public interest issue for the purpose of S.43(B)(1), and so it was not protected.  This conclusion was based on a finding of fact that the Claimant did not have a subjective belief in the public interest element of his disclosure.  The Claimant’s appeal was therefore dismissed.

Our solicitors’ views on the case of Ibrahim v HCA International Ltd

Sacha Barrett, a Senior Associate in the employment department at Redmans, made the following comment on the case: “This case demonstrates that the requirement that a disclosure is made ‘in the public interest’ is fundamental to the success of any whistleblowing claim.  Whether a disclosure was made ‘in the public interest’ is for a tribunal to decide having considered the facts of the case, but this case makes it clear that the disclosure must be concerned with more than just a breach of an individual worker’s contract of employment for it to be covered by whistleblowing legislation.” 

The decision of the Employment Appeal Tribunal in Ibrahim v HCA International Ltd UKEAT/0105/18/BA can be found here.