Whistleblowing

16 September 2019

An employee is unfairly dismissed if they were dismissed because they made a “protected disclosure”.

In order to be a protected disclosure, section 43B Employment Rights Act 1996 says the disclosure must be made in the public interest 'in the reasonable belief of the worker making the disclosure'. Is a tribunal wrong when looking at this criterion to consider whether the disclosure really is in the public interest?

In Okwu v Rise Community Action, the employer was a small charity which provided support to people affected by domestic violence, female genital mutilation or HIV. They employed the employee as a specialist worker. In the first few months, the employer raised numerous performance issues with the employee and extended her probationary period. The employee then wrote to the employer saying that they were in breach of the Data Protection Act for not providing an individual mobile phone and secure storage when she was dealing with such sensitive matters. She was dismissed and the letter of dismissal referred to performance issues and her 'antagonism' towards the charity. The employee brought an unfair dismissal claim saying she had been dismissed for making protected disclosures. She said nothing else had happened between her probationary period being extended and her dismissal other than her sending the letter.

The employment tribunal disagreed. They said the disclosures had been in her contractual interests, not the public interest. She had been dismissed because of issues the employer had with her performance and the dismissal was fair. The employee appealed. The Employment Appeal Tribunal allowed her appeal. They said the correct question was whether the employee reasonably believed that her disclosure was in the public interest, not whether the disclosure really was in the public interest. The employee's work was very sensitive. The EAT said it was hard to see how her disclosure could not, in her reasonable belief, have been in the public interest. The tribunal had either applied the wrong test or not explained its reasons properly. That being the case, if one of the reasons for her dismissal was the content of her letter, it was possible that the employer's decision was motivated by a protected disclosure. The case was sent back for the same tribunal to reconsider these issues afresh.

This decision shows the importance of restraint when it comes to performance and dismissal issues. In this case, the employer appears to have responded to the employee's letter in a knee jerk manner without considering the wider ramifications. Employers should scrutinise managers' potential dismissal decisions and ensure that any employee complaints are carefully considered before action is taken.


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