Barton v Royal Borough of Greenwich UKEAT/0041/14
Whistleblowers are protected from detriment or dismissal if they have made a qualifying disclosure (a disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show that one of the specified types of wrongdoing has taken, or is likely to take, place). Whistleblowers are encouraged to report their concerns to their employer, but may report them externally to one of the "prescribed persons" specified in legislation. A stricter test for protection is applied to external whistleblowing, requiring that the concern falls within the remit of that external person, and that the information and allegations are substantially true.
In this case, a worker contacted the Information Commissioners Office (ICO) despite instructions to the contrary, in relation to an alleged breach of data protection obligations.
In December 2011, the Claimant was told by a colleague that his manager had emailed a large number (in the hundreds) of documents to her home computer. The Claimant, who believed the documents contained confidential personal data about himself, checked the ICO's website and then sent an email to the ICO telling them what he believed his manager had done, and requesting advice. Later that day he told Mr O'Malley, head of community housing services, what he understood his manager had done, and that he had emailed the ICO. In response, Mr O'Malley told him that he would investigate but that the Claimant should not contact the ICO in the meantime without prior authorisation. In January 2012, the Claimant telephoned the ICO to ask whether the Respondent had the authority to tell him not to contact the ICO – the ICO said it did not, and the Claimant told Mr O'Malley this.
Mr O'Malley's investigation showed that the manager had emailed 11 documents to herself, none of which were confidential or inappropriate. The Claimant was told he would himself face a disciplinary investigation regarding his failure to follow a reasonable instruction (not to contact the ICO), and for reputational damage for raising matters with a third party with unreasonable haste. During the same period, a tenant complained about an "unbalanced" letter the Claimant had sent and a second disciplinary investigation resulted in his suspension. Taking both incidents, and a previous final written warning still on his file, into account, the Respondent dismissed him.
The EAT held that:
- The Claimant's email and his call with the ICO were separate and not a combined disclosure. Whilst the email was a qualifying protected disclosure, as the Claimant reasonably believed at the time that the information tended to show the Respondent had breached its data protection obligations. The phone call asking for advice was not a disclosure and was not protected.
- Whilst the EAT held it was not required to determine whether the instruction not to contact the ICO was unlawful, as this had not been argued before the tribunal, it went on to say that if this was not the case, in its view it was not unlawful. There was no blanket ban on his contacting the ICO, merely that he had been asked not to take the initiative in contacting them whilst the investigation continued. The EAT said there was no evidence that any request to contact the ICO would have been refused by a manager. Furthermore, the cat was out of the bag – the disclosure had already been made – and asking for advice was not a protected act. Even if the instruction was not lawful, its unlawfulness was merely a relevant factor, not a decisive factor, in determining the employer's reasonable belief.
What to take away
The EAT held that the employee was fairly dismissed. The employer had imposed a very limited and specific restriction here not to contact the ICO and on the facts no disclosure had been made in the subsequent call. However, employers cannot usually prevent employees making protected disclosures (see NHS settlement agreement issue for example). It might have been a very different story had the employee disclosed new information to the ICO in that call.
Employers can and should encourage workers to report concerns internally, such as by providing a whistleblowing policy and procedure.