The Employment Appeal Tribunal (EAT) has confirmed that whether or not a protected disclosure was in the public interest only requires the employee to have a reasonable belief that it was (Okwu v Rise Community Action)
Background: Under the whistleblowing provisions of the Employment Rights Act 1996 (ERA), workers seeking protection from dismissal or detriment must make a disclosure of information which, in the reasonable belief of the worker making the disclosure:
- tends to show commission, or likely commission, of one of six prescribed forms of wrongdoing (including breaches of contractual and statutory obligations); and
- is made in the public interest.
If these requirements are not satisfied, they will not qualify for whistleblower protection. The public interest element of the test can be satisfied even if the basis of the disclosure is wrong and/or there was no public interest in the disclosure being made, provided that the worker's belief that the disclosure was made in the public interest was objectively reasonable. Consequently, Employment Tribunals may need to consider the worker's motive in making the disclosure, such as whether it was made for purely personal reasons or other reasons as well.
Facts: In this case, the Claimant had worked for a small charity (Rise) as a domestic violence and female genital mutilation specialist worker for a few months when Rise raised some performance concerns and extended her probation period. The Claimant emailed Rise alleging that they were in breach of Data Protection legislation by failing to provide her with her own mobile phone or with secure storage when she was dealing with sensitive and confidential personal information. Rise terminated the Claimant's employment on performance grounds and the Claimant claimed that she had been unfairly dismissed for making protected disclosures.
Employment Tribunal and EAT decisions: The Tribunal found that the matters raised by the Claimant were not in the public interest, because: a) they concerned her own contractual position and b) she had not provided sufficiently detailed information to amount to a qualifying disclosure. The Tribunal accepted that the Respondent had genuine concerns about the Claimant's performance and her claim was dismissed.
However, the EAT found that, regardless of the disclosure being in the public interest (or true), the Tribunal had failed to ask whether the Claimant had a reasonable belief that her disclosure (relating to potential breaches of the Data Protection Act) was in the public interest. Given the sensitive nature of the information, the EAT thought that it was hard to see how her belief could not have been and sent the case back to the same Tribunal for reconsideration.
What does this case tell us? This case is a reminder that, whilst whistleblowing allegations do not have to be true, the employee must have held the reasonable belief that they were in the public interest. The nature of the disclosure will count towards discharging the evidential burden (for example, in this case, the disclosure fits clearly into data protection legislation). So, even though the disclosures in this case related to "personal contractual matters", because they also fit into the legislative framework, the chances of the public interest requirements being met are actually higher. Employers should keep this in mind when considering whether or not a worker is protected by whistleblowing legislation.