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The Public Interest Test for Whistleblowing – There Must be an Opportunity to Give Evidence: Ibrahim v HCA International Ltd

The Court of Appeal in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] set out a two-stage test to establish whether a protected disclosure was in the public interest:

  • Did the worker believe the disclosure was made in the public interest at the time?
  • Was that belief reasonable?

When applying the Chesterton test, it is important to remember that the pre-dominant motive for making a protected disclosure is not the same as a subjective belief.

The Employment Tribunal in Ibrahim v HCA International Ltd were tasked with the application of the Chesterton test.

Background

Mr Ibrahim worked for HCA International Ltd as an interpreter from 2008 (the exact date is not agreed between the parties) until October 2016. Mr Ibrahim believed that his manager had spread rumours that he had breached patient confidentiality and asked HCA to investigate the suspected unprofessional conduct in order to clear his name and restore his reputation. Although Mr Ibrahim raised a grievance with HCA, his complaint was not upheld.

In January 2017, Mr Ibrahim issued claims in the Employment Tribunal for unfair dismissal, wrongful dismissal, arrears of wages, sex discrimination and detriment on the grounds of public interest disclosures made in March 2016. There was a preliminary hearing on the matter in June 2017 and judgment was reserved until September 2017. During this time, the case of Chesterton had been heard in the Court of Appeal and the two-stage public interest test was set out.

The Tribunal considering Mr Ibrahim’s claim decided that the disclosures made were not done so in the public interest, but were made in order to clear his name. Often where disclosures of information are made concerning breach of patient confidentiality, it is considered to be in the public interest. However, Mr Ibrahim had only complained to the extent that this was a false accusation against him.

The Employment Appeal Tribunal upheld this decision and concluded there was no “subjective belief in the public interest element of his disclosure”.

The Court of Appeal

The Court allowed Mr Ibrahim’s appeal.

In March 2016 when the disclosures were made, Mr Ibrahim did not did not make any comments regarding public interest or the hospital’s reputation. Based on this, the Tribunal reached a decision on what it believed to be Mr Ibrahim’s motive – that he made the disclosures in order to clear his name and “re-establish his reputation”.

However, the Court of Appeal determined that the Tribunal should have put the question to Mr Ibrahim of whether he believed he was acting in the public interest when he made the disclosures in March 2016. His evidence on this point would then have been evaluated by the Tribunal to reach a decision on whether Mr Ibrahim had a subjective belief that he was making disclosures in the public interest.

It was notable in this matter that Mr Ibrahim represented himself throughout the litigation. In order to ensure that he was afforded a proper opportunity to present his case, the matter was remitted to the same Tribunal to establish whether Mr Ibrahim had a subjective belief that the disclosures were in the public interest at the time they were made to HCA, and whether this was reasonable.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.

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