Kilraine v Wandsworth London Borough Council [2018] EWCA Civ 1436

In brief

Ms Kilraine, a school-improvement adviser employed by Wandsworth LBC, made a series of communications which the tribunal and EAT held did not amount to qualifying disclosures under s.43B(1) ERA 1996 because they were allegations rather than information. The Court of Appeal (Sales LJ giving the leading judgment) upheld that outcome but clarified the underlying principle: "information" and "allegation" are not strict mutually-exclusive categories, and a communication can be both. What s.43B(1) requires is that the communication convey information with sufficient factual content and specificity that the matter tends to show one of the listed failures in s.43B(1)(a)-(f). A communication that is no more than an unspecific assertion of wrongdoing will not cross that threshold.

Key provisions

• §§30–36 — "Information" requires sufficient factual content and specificity: To be a qualifying disclosure the communication must convey "information" — meaning it must have sufficient factual content and specificity such that the information tends to show one of the listed failures in s.43B(1)(a)-(f) ERA 1996. A bare allegation without facts supporting it does not qualify.
• §§30–36 — Information and allegation are not rigid opposites: The earlier Cavendish Munro language treating "information" and "allegation" as distinct categories was overstated. A statement can be both an allegation and information; what matters is whether it conveys information with sufficient factual content and specificity.

When relevant

Whenever a qualifying-disclosure challenge turns on whether a communication is information or allegation. Use in drafting disclosures to ensure adequate factual specificity, and in defending the qualifying-disclosure character of a communication against an employer's "allegation only" argument.