The recent Employment Appeal Tribunal (EAT) decision in Capeling v TFX Group Ltd is a useful reminder of when disclosures will qualify for whistleblower protection. In this case, the EAT held that a general, unexplained assertion that there was a health and safety risk to patients did not amount to a protected disclosure.
A protected disclosure is a disclosure of information that, in the reasonable belief of the worker making it, is made in the public interest and tends to show one of six specified wrongdoings, including a breach of any legal obligations, that there is a danger to health and safety or concealment of such matters (Section 43B Employment Rights Act 1996). Case law has established that there must be sufficient factual content to the disclosure. Vague allegations or expressions of concern will not be protected.
TFX Group is a medical device manufacturer, and Mrs Capeling was employed as a National Sales Manager. She was dismissed for poor performance just before the end of her six-month probationary period.
The Employment Tribunal
Mrs Capeling brought Employment Tribunal claims alleging automatic unfair dismissal and whistleblowing detriment. She argued she had been dismissed and was subjected to detriment because she had made three protected disclosures during the course of her employment.
Mrs Capeling’s first and second disclosures were quickly dismissed by the Employment Tribunal on the basis that the first one didn’t happen, and she did not genuinely believe in her second disclosure either that a legal obligation had been breached or that the disclosure was in the public interest.
In the third disclosure, Mrs Capeling said she made it related to the fact TFX did not have written contracts in place with some of its appliance contractors which she suggested posed a risk to end-user health and safety, and that information relating to this may have been deliberately concealed by the company. The Tribunal found that this did not constitute protected disclosures because Mrs Capeling had failed to establish that the health and safety of anyone had been, was being, or was likely to be endangered; or that any relating information had been deliberately concealed.
As she had not made any protected disclosures, Mrs Capeling lost her automatic unfair dismissal and whistleblowing detriment claims.
The EAT
Mrs Capeling appealed to the EAT in relation to her third disclosure only, alleging that the Tribunal had made an error in law.
The EAT dismissed her appeal, ruling that there was no legal error in the Tribunal’s decision. Mrs Capeling had failed to provide evidence demonstrating that she had a genuine and reasonable belief that the absence of written contracts endangered the health and safety of any individuals.
She had made only a broad, unexplained, and unsupported assertion that there were risks to patient health and safety. The Tribunal had accepted evidence from two TFX directors that patient safety was unaffected since standard terms and conditions applied by default where individual contracts were not in place. The Tribunal had also been justified in concluding that Mrs Capeling’s belief was not reasonable, particularly given her senior role and knowledge of the business. Someone in her position ought reasonably to have understood that the absence of written contracts did not itself create a health and safety risk.
The key takeaway is that not every concern raised at work will qualify for whistleblowing protection. It must relate to one of the specified types of wrongdoing in the Employment Rights Act 1996, but more importantly, the information being disclosed must contain at least some detail. A vague description that something is a ‘breach of a legal obligation’ without saying what the legal obligation is – or saying something is ‘a health and safety risk’ without identifying what the risk is or why – might not qualify as a protected disclosure. Unparticularised and unsupported concerns are unlikely to qualify for protection. Tribunals will also look closely at what the individual genuinely believed and whether that belief was objectively reasonable considering their role, experience, and knowledge.
