12 Sep 2019
The Employment Appeal Tribunal (EAT) has held that, in order for whistle blowers to be legally protected, tribunals should assess if the person who blew the whistle reasonably believed that their actions were in the public interest.
Okwu v Rise Community Action
Under Section 103A of the Employment Rights Act 1996 (ERA), an employee will have been unfairly dismissed if the reason for the dismissal is that they made a protected disclosure, more commonly known as ‘blowing the whistle’.
This means that you cannot dismiss an employee if the reason for their dismissal is the act of whistleblowing.
The law defines a protected disclosure as the disclosure of information which, in the reasonable belief of the individual, is in the public interest.
It also needs to show that a person, such as an employer, has failed to comply with any legal obligation to which they are subject.
Establishing if a disclosure is in the public interest can be tricky. Previously, the case of Chesterton Global Limited v Nurmohamed outlined that determining this is up to tribunals.
Tribunals therefore need to establish, on a case-by-case basis, if the information disclosed is sufficiently in the public interest and is therefore a protected disclosure.
Background to the case
The claimant, who had recently started her job with the employer, had her probationary period extended.
Why? Because her employer had concerns over her performance.
Not long after this, the claimant raised issues of complaint via a letter.
This letter outlined that she thought the organisation was in breach of the Data Protection Act 1998 (DPA) by failing to provide her with her own mobile phone and with secure storage.
This was particularly important in her role as she often dealt with sensitive and confidential information.
The employer dismissed her, stating that they were not satisfied that she was going to take reasonable management instructions to improve her performance.
In the employee’s termination letter, the employer stated that their decision was ‘compounded’ by her recent comments. Supposedly, these comments demonstrated her ‘contempt’ for them.
The employee brought a claim to the employment tribunal (ET) for automatic unfair dismissal.
She claimed the information she’d brought to light amounted to a protected disclosure, as it displayed that the employer was failing in their legal obligations towards data protection.
What did the tribunal say?
The ET initially dismissed her claim, finding that she hadn’t made any protected disclosures.
They held that the matters raised by the claimant concerned her own personal issues and, therefore, were not in the public interest. Furthermore, the disclosures lacked sufficient detail to qualify as protected.
The tribunal also pointed out that the employer had clearly displayed that it showed genuine concerns about her performance.
The claimant appealed to the Employment Appeal Tribunal (EAT).
She argued that her employer had failed to provide clear reasons for her dismissal as it had already agreed to extend her probationary period previously.
From what she could see, the only change between them doing this, and then dismissing her, was her disclosing her concerns to them.
What did the Employment Appeal Tribunal (EAT) say?
The EAT upheld her appeal.
They outlined that the tribunal had failed to properly consider whether the claimant had reasonably believed that her disclosure was in the public interest.
The EAT stated that, given the sensitive nature of the disclosure, it was hard to believe that it could not be.
They went on to explain that the claimant had clearly explained in her disclosures how the actions of the employer were capable of showing a breach of their legal obligations for data protection.
Therefore, the tribunal had also failed to explain why the disclosure lacked sufficient detail.
The case was remitted back to the same tribunal to reconsider if the claimant did believe her disclosures were in the public interest.
This case is a reminder that in protected disclosure cases, the focus is on a number of things:
- What the individual says
- Whether or not they believe they’re raising details of wrongdoing in the public interest
- If the disclosures they are making are clear, have sufficient detail and can therefore be understood
Whether the employee has a personal stake in their disclosure will be irrelevant and will not automatically mean that it is not in the public interest.
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