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When is a whistleblowing disclosure in the public interest?

Senior Associate Solicitor, Alexandra Besnard

The Employment Appeal Tribunal (“EAT”) in the case of Okwu v Rise Community Action has considered whether a protected disclosure, or ‘whistleblowing disclosure’, needs to actually be in the public interest or if it is sufficient that the person making the disclosure believes that it is.

Background

The Claimant was employed by Rise Community Action, the Respondent, which is a charity that supports individuals affected by domestic violence, HIV and FGM. During the Claimant’s probationary period, the Respondent became concerned about the Claimant’s performance and extended her probationary period by 3 months.

In response, the Claimant wrote to the Respondent with various concerns about their practices, including that they had breached their obligations under data protection legislation. The Claimant was then dismissed on conduct and performance grounds, with the Respondent suggesting that the Claimant’s letter demonstrated her contempt for the charity.

The Claimant then brought a claim for unfair dismissal on the basis that she was dismissed because she had made a protected disclosure.

The Law

Under S.43B of the Employment Rights Act (“ERA”) 1996, a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker, tends to show one of six factors, for example that a criminal offence has been committed. However, for the disclosure to be protected, it must be made in the public interest.

Decision

The Claimant’s claim to the Employment Tribunal failed because the Tribunal considered that the disclosure was not in the public interest, but instead related solely to the Claimant’s personal and contractual situation. The Claimant then appealed to the EAT.

The EAT allowed the Claimant’s appeal.  The EAT disagreed with the Employment Tribunal about the requirements for whether a disclosure is in the public interest or not. It decided that the question the Tribunal should have asked was whether the Claimant reasonably believed that the disclosure was in the public interest or not.

Comment

This decision further broadens the scope of protection afforded to whistleblowers and reinforces the message that employers should be conscious of situations where employees raise concerns which may amount to protected disclosures. Indeed, whilst objectively, a disclosure may not appear as being in the public interest it may be protected, if the employee making that disclosure reasonably believes that it is.

Between this decision and the one in Bilsbrough v BMS Ltd (covered by Paul McGowan here) the EAT has made it clear that the statutory whistleblower protections will be interpreted broadly so as to afford greater protections for employees.  It will therefore be important to tread carefully as whistleblowers can claim unlimited damages in the Employment Tribunal.  In circumstances such as these, we would be happy to advise you on the best way forward, so feel free to call me on 01912822886.

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