Can complaining about defamation form the basis of a protected disclosure in a ‘whistleblowing’ claim?
Yes, held the Employment Appeal Tribunal in Ibrahim v HCA International, although on the facts the public interest test was not met.
The Claimant was an interpreter at a hospital. He alleged in grievances that colleagues had falsely blamed him for breaches of confidentiality. The employment tribunal dismissed the claim on the basis that the allegations did not come within the scope of alleging a failure to comply with a legal obligation, and he did not have a subjectively reasonable belief that they were in the public interest.
The EAT held that by complaining about defamation, the Claimant had disclosed information tending to show that a person had failed to comply with a legal obligation. This met the test under s43B(1)(b) Employment Rights Act, which is wide enough to cover allegations of defamation, and generally claims in tort or for breach of a statutory duty.
However, on the second limb, the tribunal was entitled to hold that the Claimant did not have a subjective belief at the time that his allegations were in the public interest, his concerns centred around his personal situation, so the appeal failed.