We recently acted for the Royal College of Nursing assisting them successfully to defend an unfounded whistleblowing claim brought by their former Chair of Council. The Bates Wells team was led by Paul Seath and Jasmine Sudworth.

This case study highlights the potential pitfalls where claimants fail to raise concerns in the correct way, where concerns are taken directly to the media, and how the result of this may be that claimants do not qualify for the legal protections afforded to whistleblowers.

The background

The claimant in this case was elected the Chair of Council of the Royal College of Nursing in September 2020.

In July 2021, the RCN received several serious complaints about the claimant’s conduct. In the following days, the claimant agreed to step down as Chair of Council, and a communication was sent to members to inform them that the claimant was stepping down while the complaints were investigated.

The claimant subsequently lodged a grievance complaining that the message which had been circulated to members was “false and damaging”.

At the same time, a separate independent investigation was taking place at the RCN in relation to the RCN’s former Chief Executive (allegations which were denied). The claimant was aware of this investigation in his capacity as Chair, but the investigation was ongoing and had not yet been completed.

At the end of August 2021, the claimant made a complaint to the Information Commissioner and the Trade Union Certification Officer regarding the announcement to members about his stepping down. He said that his confidentiality had been breached and as part of his complaint, he also made reference to confidential circumstances surrounding the departure of the former Chief Executive.

Following this, the claimant made a number of disclosures to different journalists informing them of his complaints to the ICO and to TUCO, which again included confidential information regarding the former Chief Executive’s departure. These communications to journalists were his alleged protected disclosures. Stories were subsequently published in the media regarding the claimant and the RCN.

Following two disciplinary processes, including an appeal, the claimant was ultimately expelled from the RCN in April 2022.

The claimant subsequently brought two claims in the Employment Tribunal alleging whistleblowing detriment and that he had been unjustifiably disciplined (contrary to his rights as a trade union member), claiming that his suspension and expulsion from the RCN were because he had made protected disclosures. These claims were heard by the London Central Employment Tribunal in April 2024 and the claims were dismissed by the Tribunal.

Key issues and findings

Worker status

In order to qualify for whistleblower’s protection, an individual must be a worker. Strictly speaking, this means that they must have entered into a contract to perform work or services however there are exceptions to this rule.

In Gilham v Ministry of Justice, the Supreme Court decided that an individual can be a worker if they work by virtue of appointment to an office whereby they undertake to do or perform personally work or services (notwithstanding that they do not work under a contract and do not therefore technically meet the definition of a worker under employment legislation). This was a significant judgment because it potentially opened the gate for volunteers and non-executive directors to gain whistleblower protection.

The recent Employment Appeal Tribunal judgement in the case of Dr Nigel MacLennan and the British Psychological Society (BPS) ruled that trustees, despite being unpaid volunteers, often hold significant responsibilities and an “occupational status” akin to paid employees, potentially paving the way for over one million trustees in the UK to receive legal protection from whistleblowing detriment.

However, the claimant in this case ultimately failed to prove worker status because the Tribunal found that:

  • There was nothing sufficiently resembling a contractual relationship between the claimant and the RCN in relation to his elected position as Chair of Council; and
  • It was a relevant factor (although not in itself determinative) that the position of Chair was unpaid, and in fact the claimant was specifically prohibited from being paid by the RCN’s governing documents.

Protected disclosures

Under whistleblowing legislation, a protected disclosure is a disclosure of information which, in the reasonable belief of the individual making the disclosure, is made in the public interest and tends to show (among other things) that a criminal offence has been committed or that a person has failed to comply with a legal obligation.

Disclosures should usually be made to a worker’s employer, but they can still benefit from protection if made to another prescribed person or, in certain circumstances, if made to the press. For a disclosure to the press to qualify for protection it would need to meet the following criteria:

  • The worker reasonably believes that the information disclosed is substantially true;
  • The disclosure is not made for personal gain;
  • In all the circumstances of the case, it is reasonable for the worker to make the disclosure; and
  • One of any of the following conditions is met:
    • The worker reasonably believes they will be subjected to a detriment by their employer if the disclosure is made to the employer;
    • The worker reasonably believes that it is likely that evidence will be concealed or destroyed if the disclosure is made to the employer; or
    • The worker has previously made a substantially similar disclosure to a prescribed person.

In this case, the Tribunal found that:

  • The claimant reasonably believed that the allegations in his disclosures to the journalists were true; and
  • The disclosures were not made for personal gain; but
  • That the claimant had made disclosures to the press as an act of retaliation against the RCN because he had been suspended and believed he had been unfairly treated;
  • That he did not reasonably believe he would be subjected to a detriment or that evidence would be concealed or destroyed if the disclosure was made direct to the RCN; and
  • Ultimately that it was not reasonable in all the circumstances for the claimant to have made the disclosures to the press.

Crucially, the Tribunal did not accept that the claimant believed that there was going to be, or had been, a cover-up of the investigation regarding the former Chief Executive.

These findings highlight the importance for organisations of having appropriate whistleblowing procedures in place, so that employees and workers are clear about who/where concerns should be reported and that they have confidence that these matters will be handled appropriately. It also highlights the dangers for potential whistleblowers of making disclosures to the media in the belief that they will be protected.

If this judgment raises issues about your policies or approaches around whistleblowing, we may be able to help. Please do get in touch.