Resources

Defamation can form the basis for a whistleblowing claim – but is it in the public interest?

04 April 2019

In the recent case of Ibrahim v HCA International, the Employment Appeal Tribunal (‘the EAT’) has ruled that making a complaint about defamation can constitute a protected disclosure in a whistleblowing claim.

Mr Ibrahim worked as an interpreter at HCA International’s (‘the Respondent’) private hospital. On 15 March 2016, Mr Ibrahim met with the Respondent’s Director of Rehabilitation and asked her to investigate two issues about which he had concerns. The first concern was his belief that rumours were being spread that he had breached patient confidentiality. The second concern was that another colleague had behaved in an unprofessional manner towards him. The matter was referred to the HR team and a meeting was held on 22 March 2016. Mr Ibrahim’s complaints were not upheld by the Respondent and, at a later date, Mr Ibrahim was dismissed.

Mr Ibrahim subsequently brought a claim in the Employment Tribunal (‘the ET’) for whistleblowing on the basis that his grievances amounted to protected disclosures. The ET dismissed Mr Ibrahim’s claim as it found his grievances were not protected disclosures since they did not show that a person had failed to comply with a legal obligation and they ”were not made in the public interest but were rather made with a view to the claimant clearing his name and re-establishing his reputation”.

Mr Ibrahim appealed the decision to the EAT on the basis that the ET were wrong to rule that the matter disclosed did ”not amount to a disclosure of information tending to show that someone has breached a legal obligation” and that the ET had failed to apply the correct public interest test.

Mr Ibrahim submitted that the legislation was broad enough to include tortious duties including defamation. The EAT stated that it was ”apparent that the Claimant’s complaint of damaging false rumours about him that he has breached patient confidentiality is clearly an allegation that he is being defamed” and that the ET had ”erred in concluding that the Claimant had not identified any legal obligation that may have been breached”. The first ground of Mr Ibrahim’s appeal was therefore successful.

However, with regards to the second ground relating to whether the public interest test had been met, the EAT agreed with the ET that Mr Ibrahim did not have a genuine and reasonable belief that the disclosures were in the public interest. Mr Ibrahim’s only concern was that false rumours had been made about him and the effect they had on him. He did not have any subjective belief in the public interest element of his disclosure but a ‘personal concern’ of being defamed. The EAT therefore dismissed the appeal.

Comment

The public interest test was introduced to prevent employees from relying on the whistleblowing legislation in relation to personal grievances. This case reiterates the importance in a whistleblowing case of an employee establishing that their protected disclosure is, in fact, in the public interest rather than for their own personal need. It is a helpful reminder to employers who are the subject of whistleblowing allegations that an employee must show more than just a breach of a legal obligation, but that their disclosure of the breach is in the public interest.

By Emily Calfe

For further advice on the above topics, please call us on 01483 543210 or alternatively email enquiries@barlowrobbins.com

Back To Related Content