Whistleblowing: Why Claimants Can’t ‘Fillet Out’ Disclosures

In this case, the Employment Appeal Tribunal (EAT) has dismissed an appeal by a former senior Greater Manchester Police (GMP) officer who claimed to have made 19 protected disclosures to the Independent Police Complaints Commission (IPCC), upholding the Employment Tribunal’s finding that none of the disclosures qualified for whistleblowing and that Mr Jackson had not been constructively unfairly dismissed. Mr Jackson sought to rely on selected passages from lengthy disclosures made to the IPCC in support of his whistleblowing claim. The decision provides useful guidance on the requirements for establishing a protected disclosure and highlights the key elements of a successful whistleblowing claim.

The background

Peter Jackson, aged 60, the former head of GMP’S Major Incident Team, made a series of allegations of corruption whilst being employed by the GMP. Mr Jackson raised his concerns by sending three lengthy reports to the regulatory body, IPCC. The reports contained serious allegations against the GMP such as cronyism, favouritism and cover-ups in his force. In addition to this Mr Jackson claimed that selected passages from his reports to the IPCC were protected disclosures and, as a result, he suffered detriment and this led to his resignation and his belief that he had been constructively unfairly dismissed by GMP. Accordingly, Mr Jackson brought claims at the Employment Tribunal (ET).

The law on protected disclosure

Broadly, under the Employment Rights Act 1996 (ERA) a protected disclosure is a qualifying disclosure (more commonly known as whistleblowing) where an employee who reasonably believes that there is (for example) illegal or harmful wrongdoing in the organisation and it is in the public interest for the disclosure to be made. On uncovering the alleged wrongdoing, the employee must inform either their employer or the appropriate regulatory body.

The law, in these circumstances, provides legal protection for employees against losing their job or unfair, detrimental treatment at work.

The Employment Appeal Tribunal

On appeal, Mr Jackson argued the ET should have only looked at the passages from his reports to the IPCC which he chose to rely on when considering whether they amounted to protected disclosures.

The EAT disagreed with Mr Jackson and agreed with the ET’s judgment as summarised by Employment Judge Holmes, who chaired the panel: “The claimant made no protected disclosures,” and “some of the disclosures relate to serious issues arising in the course of police operations” which did not satisfy the legal requirements of qualifying disclosures.

The EAT added that it is impermissible to “fillet out” specific parts of a written disclosure to bypass the stringent statutory tests outlined in the ERA.

The EAT went on to explain that ETs are permitted and required to read external disclosure reports as a whole and in context rather than isolating individual, cherry-picked sentences or phrases chosen by a claimant.

Under section 43F ERA, a whistleblower making an external disclosure to a prescribed person or regulator must reasonably believe that both the information disclosed and each allegation within the disclosure are substantially true.

The issue, therefore, was whether Mr Jackson reasonably believed that the information he disclosed, and the allegations contained within it, were substantially true.

The EAT held there was no requirement for Mr Jackson to show the beliefs he held and disclosed to the IPCC were substantially true, but that he reasonably believed in the substantial truth of the matters. In this case, the ET held that Mr Jackson lacked the requisite belief and therefore his whistleblowing detriment claims could not succeed.

Comment

This case demonstrates that, when assessing protected disclosure claims, tribunals will consider the alleged disclosures in their entirety and within the proper factual and natural context rather than relying on edited, extracted or isolated passages.

The rejection of the “filleting” approach prevents claimants from selectively identifying parts of a report in an attempt to satisfy the statutory requirements for a protected disclosure under the ERA.

The decision highlights the importance of ensuring that disclosures are clearly drafted, focused on the relevant wrongdoing, and capable of meeting the statutory criteria on their own merits.