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When is a grievance a protected disclosure?

Occasionally an employee will submit a grievance, later to rely on it as them blowing the whistle.  However, just because it is a written complaint to their employer, it doesn’t always mean it is a protected disclosure.  The question any adviser will want to know is, does the contents meet the requirements of a ‘qualifying disclosure’?

Remember, the disclosure of information needs to be more than just an individual expressing their concern at something within the workplace; on its own, it is not going to cut the mustard if it does not contain a disclosure of facts.  It should also be specific because too wide an allegation may risk falling outside of s43B(1) ERA 1996.  The grievance needs to convey information so that on an ordinary reading, it can be taken as providing information of a wrongdoing of sorts (in other words showing one or more of the categories listed in s43B(1)).

when is a grievance a protected disclosure?

A simple question to ask yourself is, does the grievance show an issue has arisen, that is being complained about as a wrongdoing?  An example could be an employee complaining about loose ceiling tiles above their desk or in their department and expressing their concern at the health and safety risks if they should fall.

It is important therefore to carefully consider the wording of any grievance to see what the contents say (i.e. a concern voiced versus a matter of information disclosed), as well as the context in which the information is cited.  Is this a complaint which has been raised informally before, is there anything else going on which could mean the grievance is more of a retaliation (think the classic grievance following a disciplinary scenario, but take care as it still may be genuine) and/or, has other evidence been supplied in support. Context is going to be key when assessing the grievance in this way to see if it provides any supplementary meaning to the complaint.

In addition to the importance of what the content provides, let’s not forget the individual needs to hold a reasonable belief that their grievance tends to show a wrongdoing falling into one of the listed categories in s43B(1), and their reasonable belief is made in the public interest.  There is naturally going to be a subjective element and the courts have shown us that a subjective view, with a sufficiently factual content of a complaint specifying which wrongdoing category is complained about, is likely to be considered a reasonable belief.

Clearly the public interest test is going to be significant, as the majority of the time an employee’s grievance is going to be personal to them.  In order for the grievance to qualify as a protected disclosure therefore, the disclosure is going to need to show it is genuinely in the public interest.  That is not to say for example a breach of employment contract won’t qualify, however the key is whether it refers to issues which involve the wider public interest.

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