Clearing own name did not meet public interest disclosure test

In Ibrahim v HCA International Ltd, UK EAT 0105/18, the EAT looked at what constitutes a qualifying disclosure and what the public interest test is when a worker has allegedly been victimised for making a public interest disclosure. This case was brought by an interpreter for the NHS. The EAT found that the tribunal was wrong in its analysis of whether the disclosure was a disclosure for the purposes of s 43B(1)(b) of the Employment Rights Act 1996.

Section 43B(1) provides: “In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following –… (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject."

The EAT found that the provision was wide enough to include defamation. The appellant had said that his aim was to clear his name when false claims were made by colleagues that he had breached patient confidentiality. He therefore met the first test.

However, he did not meet the test of whether he believed that the disclosure was in the public interest. Following the amendment to the 1996 Act by the Enterprise and Regulatory Reform Act 2013, a number of cases have considered the public interest element.

The EAT, following and applying a Court of Appeal case, Chesterton Global Limited (T/A Chestertons) v Nurmohamed [2017] EWCA Civ 979, held that the appellant had to show he or she reasonably believed that the relevant disclosure was in the public interest. In Ibrahim, the appellant’s goal was to clear his name and reputation, and thus he had not shown that he believed that the disclosure was in the public interest. Accordingly, his appeal was dismissed.