Whistleblowing – ‘Disclosure’ and ‘Reasonable Belief’
Recently, the number of claims being pursued in the Employment Tribunal where a Claimant has claimed that they were dismissed because they made a protected disclosure seems to have increased dramatically. This could, in part at least, relate to the fact that employees now require two years’ continuous service to bring a normal unfair dismissal claim, but there is no such requirement to bring a claim for automatic unfair dismissal on the grounds that a protected disclosure has been made.
The Employment Appeals Tribunal (EAT) has recently been asked to consider whether disclosures that would not usually be considered to be ’protected disclosures’ could be converted into them by linking the relevant disclosures together.
The Employment Tribunal
In the case of Barton v Royal Borough of Greenwich, the Claimant had sent an e-mail to the Information Commissioner’s Office (ICO) after a work colleague at Greenwich Council informed him that a manager had insecurely sent a large number of documents containing personal data to her home. That allegation was not wholly accurate. The manager had sent eleven documents to her home e-mail account, which was protected by a password.
The Claimant had not checked the basis of this allegation with his employer, and he could easily have done so. The Council instructed him not to contact the ICO about the matter again so that it could investigate. However the Claimant telephoned the ICO to seek advice on the validity of this instruction from his employer. He was then summarily dismissed for misconduct as a result of what was considered to be his serious breach of duty. He had already been on a final written warning for unrelated conduct, and was also found to have committed gross misconduct by writing an inappropriate letter in the course of his duties to a member of the public. The Claimant claimed that he had been unfairly dismissed for raising a protected disclosure, and relied on the original communication with the ICO, as well as the subsequent telephone call, as protected communications.
The Claimant was unsuccessful at the Employment Tribunal. Whilst the first disclosure to the ICO was capable of amounting to a qualifying disclosure, the Claimant did not have a reasonable belief that the contents of his e-mail to the ICO tended to show that Greenwich Council had failed, or was failing, to comply with its obligations under the Data Protection Act, so it was not a protected disclosure.
His second disclosure could not have amounted to a qualifying disclosure because there was no disclosure of information to the ICO.
The Tribunal held that the Claimant’s dismissal was fair because of his conduct.
The Claimant appealed to the Employment Appeals Tribunal (EAT). He argued that his telephone call to the ICO could be aggregated with his initial e-mail so that it could be considered as a protected disclosure. However, this was rejected. The EAT relied on the previous case of Bolton School v Evans, and determined that each disclosure must be considered separately.
The purpose of the telephone call was to seek advice on the Claimant’s employment situation. It could not have been a protected disclosure, with the ICO not being prescribed for that purpose. The Claimant also argued that it was unlawful, contrary to public policy, and a breach of Article 10 of the European Convention on Human Rights for the Council to have instructed him not to contact the ICO about the investigation. The EAT declined to consider this point of the Claimant’s appeal because, following the case of Kumchyk v Derby City Council, the illegality point was a new point on appeal, and was not raised at the Employment Tribunal.
However, the EAT suggested that had it been considered, it would have rejected the illegality point on the facts as found by the Employment Tribunal. The Employment Tribunal was satisfied that there was a reasonable basis for the dismissing officers to hold the belief that the instruction not to contact the ICO was legitimate and reasonable, and there were reasonable grounds for the belief that the Claimant had breached a legitimate and reasonable instruction.
Employees should be careful when making disclosures to their employers, and it is important to have a reasonable belief that the content of any disclosure is true.
If you believe that you have made a protected disclosure (whistleblowing) regarding the conduct of your employer or your colleagues, and you have been treated unfairly (including dismissal) as a result, please contact the dedicated employment team at Michael Lewin Solicitors, and we will be happy to discuss your situation with you.