The appellant commenced employment with the respondent education authority on 1 September 2003 as an Educational Achievement Zone Literacy Advisor Teacher. She subsequently became an Education Achievement Project Manager. This involved her in projects aimed at trying to raise educational standards in schools. According to the Court of Appeal, "the appellant's relations with other staff and managers at the respondent were not always smooth." She made various allegations over the years.

After she was dismissed she brought a whistleblowing claim, alleging that her dismissal had been because she had made protected disclosures. The principal issue of law in the case related to the circumstances in which allegations made by an employee may constitute disclosure of "information" by the employee for the purposes of section 43B of the Employment Rights Act 1996 (the GB equivalent of article 67B of the Employment Rights (NI) Order 1996):

"(1) 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 —

(a)that a criminal offence has been committed, is being committed or is likely to be committed,
(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c)that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d)that the health or safety of any individual has been, is being or is likely to be endangered,
(e)that the environment has been, is being or is likely to be damaged, or
(f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed."

So, could the complaints made by the employee constitute a qualifying disclosure? Was there enough information there which would tend to show one of the offences outlined between (a) to (f) above? The Court of Appeal, upholding the outcome of the EAT and tribunal hearings, found that there was not - the allegations were not specific enough. This was one of the employee's complaints:

"I think that it is also important to remind you that what has been achieved over the years has been despite bullying and harassment that was tolerated, and at times, not least at present, encouraged over that time by Stephen Pain, Liz Rayment-Pickard [the appellant's line manager], yourself and others, and also despite successive and repeated failure to honour LA [local authority] and individual agreements to extend my role and to provide career development. Since the end of last term, there have been numerous incidents of inappropriate behaviour towards me, including repeated sidelining, and all of which I have documented. As an example, I have brought to your attention the inappropriate behaviour of Liz Rayment-Pickard, and despite your undertaking have received no feedback."

Another complaint was in relation to the safeguarding of children:

"She [the appellant's line manager] did not support me, as she claims, when I reported a safeguarding issue during [a meeting on 16 June 2010]. Her response, which shocked me was 'I can't comment, I am never there during the school day, only before … or after … so I can't comment'. This was, repeated, belittling and I tried very hard to engage her as my line manager in the report."

Neither those complaints, nor others contained enough information, in the view of the courts, to constitute a valid whistleblowing complaint. Albeit that one of the complaints related to safeguarding, the Court of Appeal concluded, "To say that an individual officer of the respondent might have been unsupportive on one particular occasion in responding in relation to a safeguarding issue is not indicative of a failure by the respondent to make appropriate general arrangements in accordance with those provisions."

It all comes down to the definition above and tribunals should not get caught up in whether information is an allegation or whether there has to be information and an allegation. The statutory test is clearly in the statute itself:

" The question in each case in relation to section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a "disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in sub-paragraphs (a) to (f)]". Grammatically, the word "information" has to be read with the qualifying phrase, "which tends to show [etc]" (as, for example, in the present case, information which tends to show "that a person has failed or is likely to fail to comply with any legal obligation to which he is subject"). In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1)...

"Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton Global at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief."
https://www.legislation.gov.uk/ukpga/1996/18/section/43B