In the recent case of Okwu v Rise Community Action, The Employment Appeal Tribunal (‘EAT’) held that it is enough for an employee to hold a reasonable belief that a disclosure is in the public interest, even if it may not be, to be legally protected for whistleblowing.
- The law
Section 103 of the Employment Rights Act 1996 (ERA) provides that an employee will have been unfairly dismissed if the reason for the dismissal is that they made a protected disclosure, also known as whistleblowing.
There are six categories of information disclosure that qualify for protection, such as a criminal offence, a breach of any legal obligation or danger to the health and safety of any individual. The disclosure must also be made to a prescribed person, covering your employer and regulatory bodies.
Under s.43B of the ERA, the employee disclosing the information must have a reasonable belief in the information disclosed and also a reasonable belief that the disclosure is in the public interest.
- Okwu v Rise Community Action - The Facts
The Claimant was employed by the Respondent, a small charity, as a domestic violence and female genital mutilation specialist worker and was subject to a 3 month probationary period. The Respondent extended the Claimant’s probationary period by a further 3 months following a poor performance review. Following this, the Claimant wrote to the Respondent claiming that they were in breach of the Data Protection Act 1998 due to the fact she was working with sensitive information and had to use a shared mobile phone when dealing with clients and the lack of secure file storage.
The Respondent dismissed the Claimant on the grounds on poor performance and highlighted that their decision was ‘compounded’ by her letter, ‘which demonstrated her contempt for the charity’. The Claimant thereafter brought a claim for automatic unfair dismissal.
The ET rejected the Claimants claim and held that the matters complained of were the Claimants own ‘personal contractual matters’ and therefore not in the public interest. It further accepted that the Respondent had genuine concerns about the Claimants performance and that her letter had not been the reason for dismissal. The Claimant appealed to the EAT.
On appeal, the EAT held that the ET had misapplied the public interest test as it had failed to properly consider whether the Claimant had reasonably believed that her disclosure was in the public interest. The EAT further confirmed that given the sensitive information involved, in relation to the shared mobile phone and file storage issues, it was hard to see how it could not have been.
They key issue is therefore, not whether the issues raised were in the public interest, but whether the Claimant reasonably believed them to be in the public interest.
Regarding the reason for dismissal, the EAT noted that the ET had failed to explain why the disclosure lacked sufficient detail. The Claimant argued that the reason for her dismissal must have been informed by her letter, highlighting the potential breaches to the Data Protection Act, and stressed that nothing else had happened between the extension of her probation and the decision to dismiss. The EAT held that the ET had failed to engage with the Claimants case and made no clear finding that it was the Claimant’s poor performance that led to her dismissal.
The EAT upheld the Claimants appeal the case was remitted to the tribunal for reconsideration.
- Implications for Employers
Employers should be aware, that just because an employee has a personal interest in disclosing information, this does not mean that it is also not in the public interest for the purposes of a whistleblowing situation. The focus is instead on whether or not an employee believes that the information they are raising is in the public interest and employers should handle such communications carefully and fairly.