Whistleblowing – What Constitutes a Qualifying Disclosure?


The Employment Appeal Tribunal (EAT) has ruled (Cavendish Munro Professional Risks Management Ltd. v Geduld) that in order to fall within the statutory definition of a protected disclosure under Section 43 of the Employment Rights Act 1996 (ERA), a disclosure must be an actual disclosure of information as opposed to an allegation or expression of concern.
Mr Geduld became a director, shareholder and employee of Cavendish Munro, a firm of insurance brokers, in March 2007. From early on in his employment there were tensions between him and his two fellow directors and less than a year later Mr Geduld was dismissed. Prior to his dismissal, his solicitor had sent a letter on his behalf to the two other directors.
As he had been employed for less than a year, it was not open to Mr Geduld to bring a claim of unfair dismissal. He claimed, however, that he had been dismissed because of the letter sent by his solicitor, the contents of which amounted to a protected disclosure. An employee can bring a claim of unfair dismissal for having made a protected disclosure irrespective of length of service and there is no upper limit to the amount of compensation that can be awarded.
The Employment Tribunal (ET) upheld Mr Geduld’s claim and awarded him £36,300 in compensation.
Cavendish Munro appealed on the ground that the ET had erred in law. Section 43 of the ERA requires a disclosure of information in order to establish the existence of a protected or qualifying disclosure. This is not the same as simply voicing a concern or objection or making an allegation. The company contended that there was nothing in the solicitor’s letter that could be said to be a disclosure of information.
Mr Geduld argued that the letter did constitute a protected disclosure. Under the ERA, a disclosure can be stating something of which the recipient is already aware. Referring to a general basis of an allegation can constitute information without the need to refer to specific facts.
The EAT upheld Cavendish Munro’s appeal and set aside the ET’s judgment. For a protected disclosure to fall within the statutory definition, there must be disclosure of information. In the EAT’s view, the letter sent by Mr Geduld’s solicitor did not convey information as contemplated by the legislation, let alone make a disclosure. It did not disclose any facts but was merely ‘a statement of position quite naturally and properly communicated in the course of negotiations between the parties’.

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