Employment Law Speed Read – 28/01/19
28th January, 2019
In Ibrahim v HCA International Ltd, the Employment Appeal Tribunal held that a complaint about defamation could form the basis of a protected disclosure in a whistleblowing claim under section 43B(1)(b) of the Employment Rights Act 1996.
Mr Ibrahim worked at HCA International Ltd, a private hospital, as an International Patient Co-ordinator; his role involved interpreting for Arabic speaking patients and providing translation services.
In March 2016, rumours began circulating that Mr Ibrahim had been involved in various breaches of patient confidentiality. On 15 March 2016, Mr Ibrahim held a meeting with Ms Pope, the director of rehabilitation. Mr Ibrahim informed Ms Pope about the rumours and requested that she launch a formal investigation. Mr Ibrahim stated that he wanted to ‘clear his name’ and that without doing so, he would be unable to continue performing his role effectively. Mr Ibrahim’s grievance was referred to the HR team, however it was not upheld.
In October 2016, Mr Ibrahim ceased working for HCA International Ltd. Following this, Mr Ibrahim brought numerous claims to the Employment Tribunal (ET) including, unfair dismissal, wrongful dismissal, sex discrimination and unlawful deductions from wages. However, the issue at the centre of the current appeal was Mr Ibrahim’s whistleblowing claim.
Mr Ibrahim argued that the grievance he had raised to Ms Pope, regarding his involvement in the breaches of patient confidentiality, constituted a protected disclosure. In order for Mr Ibrahim to succeed under this claim, he needed to establish that his grievance came within the scope of alleging a ‘failure to comply with a legal obligation’ and further, he reasonably believed that the disclosure was in the public interest.
The ET found in favour of HCA International Ltd and dismissed Mr Ibrahim’s claim. The ET held that Mr Ibrahim’s grievance did not disclose information which showed that an individual had failed to comply with a legal obligation and further, it was not made in the public interest.
Mr Ibrahim appealed to the Employment Appeal Tribunal (EAT).
Employment Appeal Tribunal
The EAT held that section 43B(1)(b) of the Employment Rights Act 1996 (ERA) was wide enough in scope to include defamation. Although Mr Ibrahim did not initially frame his grievance as an allegation of defamation, the EAT held that his complaint of false rumours was clearly an allegation that he was being defamed. Mr Ibrahim had therefore disclosed information which showed that an individual had failed to comply with a legal obligation. Accordingly, the ET had incorrectly determined this aspect of Mr Ibrahim’s claim.
However, the EAT held that Mr Ibrahim’s disclosure was not made in the public interest. Mr Ibrahim’s claim therefore could not succeed and the appeal was dismissed. The EAT held that Mr Ibrahim did not have a subjective belief in the public interest element of his disclosure; he sought to protect his personal interest and was only concerned about the effect the rumours had on himself.
Although in this instance, Mr Ibrahim was unsuccessful, the case demonstrates that section 43B(1)(b) ERA is wide enough to include allegations of defamation. Accordingly, employers should ensure that when confronted with grievances, they are investigated thoroughly and appropriately dealt with.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.