When does a concern become a disclosure of information? A reminder from the EAT on whistleblowing

Firstly, a reminder of the legal position on protected disclosures (more commonly known as “whistleblowing”).

There are two main types of claims: automatic unfair dismissal, where the reason, or principal reason, for dismissal is whistleblowing and whistleblowing detriment, applying where a worker is subjected to any detriment on the ground that they have blown the whistle. In both cases, the individual must demonstrate that they have made a “protected disclosure” under section 43B of the Employment Rights Act 1996.

A “qualifying disclosure” consists of a few different elements all of which must be met for the disclosure to be “protected”:

1. There must have been a disclosure of information, not just a concern or allegation;
2. The information must relate to one of the specified types of wrongdoing (for example, a breach of a legal obligation, a risk to health and safety, or a deliberate cover‑up); and
3. The individual must reasonably believe that the disclosure tends to show one of the relevant failures and that the disclosure is made in the public interest (this includes both what they actually believed, and whether that belief was objectively reasonable).

Further, for the disclosure to become “protected”, it must be made to one of the categories of people listed in sections 43C to 43H of the Employment Rights Act 1996.

So, what happened in Capeling v TFX Group Ltd?

Capeling started working as a National Sales Manager for TFX, a medical device manufacturer, in March 2022. She was dismissed for poor performance before the end of her six‑month probation period.

She brought claims for automatic unfair dismissal and whistleblowing detriment, relying on three alleged protected disclosures. For the purposes of the appeal – see below – and this article, only the third disclosure (“Third PD”) is relevant. The alleged Third PD that Capeling relied on is that in late August 2022, she had told her manager that TFX did not have written contracts in place with some of its dispensing appliance contractors (who supplied medical devices to patients). Her concern was that this lack of written contracts created a risk to patient health and safety and that the issue had been deliberately concealed.

The Tribunal dismissed her claim in respect of this disclosure, finding that it was not a qualifying disclosure. It accepted TFX’s evidence that the absence of written contracts did not impact patient safety, as standard terms and conditions would apply in any event.

Capeling appealed to the Employment Appeal Tribunal in respect of the Tribunal’s finding on the Third PD.

The EAT’s view

The EAT dismissed Capeling’s appeal for two main reasons.

1. Limb 1 of the “qualifying disclosure” definition had not been met, specifically there had not been a disclosure of “information”. There is well-established case law that in order to constitute “information”, the disclosure must have “sufficient factual content and specificity” in relation to e.g., danger to health and safety. With respect to the Third PD, Capeling had just informed her manager that the contracts were missing, and this put patient’s health and safety at risk, but she did not specify how or why that risk arose or what it would look like i.e., the disclosure was a general assertion rather than a substantiated disclosure of actual information.
2. Limb 3 of the “qualifying disclosure” definition had also not been met, specifically whether it was a “reasonable” belief that the absence of written contracts caused a patient health and safety risk. The EAT agreed with the Tribunal’s position that it was not reasonable for someone in Capeling’s position and with the knowledge she had to have this belief i.e., as a National Sales Manager, she ought to have known that if there was not a written contract, TFX’s standard terms and conditions would apply.

What can we take away from this case?

The EAT’s decision doesn’t break new ground, but it’s a useful reminder of where whistleblowing claims often fall down in practice.

First, not every concern is a protected disclosure. To be protected, the individual must provide information with some level of detail – not just a broad or unparticularised allegation. Simply labelling something as a “risk” will not be enough.

Second, context matters for “reasonable belief”. An employee’s role, seniority and access to information will all be relevant when assessing whether their belief was reasonable. As this case shows, what might be reasonable for a junior employee may not be for someone in a more senior position.

Finally, the two elements operate independently. Even if there is a disclosure of information, a claim can still fail if the belief in wrongdoing is not objectively reasonable (and vice versa).