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When is an employee protected as a whistleblower?

Principal Solicitor, Paul McGowan

The Employment Tribunal (“ET”) has considered whether an employee can rely upon whistleblower protection when they are considering making a protected disclosure but have not yet made one.

Background

The Claimant was employed by Berry Marketing Services (“BMS”). BMS operated a directory of venues around the world and provided software for clients to search and book venues for conferences and events. This directory stored information about the venues and the details of anyone who made a booking.

The Claimant was asked by a more senior employee to add a client to the database but did not tell the Claimant that this was a test to determine the system’s weaknesses. Subsequently, the Claimant discovered that a system user could access sensitive information, such as email addresses and banking details, about other individuals on the system.

The Claimant reported this to the director of BMS, rather than his line manager and was reprimanded for doing so. As a result, the Claimant told a colleague he would “take the company down” by reporting the data breach he had discovered and he began researching how to make a complaint to the Information Commissioner’s Office (“ICO”).

The Claimant’s colleague reported this conversation. The Claimant was suspended and after a disciplinary hearing, was dismissed before he had reported the data breach to the ICO. The Claimant brought a claim for unfair dismissal and for being subjected to detrimental treatment because he had made a protected disclosure.

The Law

Under section 47B of the Employment Rights Act (“ERA”) 1996, a worker has the right not to be subjected to any detriment by any act by his employer done on the ground that the worker has made a protected disclosure.

Decision

The ET dismissed the unfair dismissal claim because it was satisfied that the reason for dismissal was the Claimant’s conduct. However, the detriment claim succeeded. The ET found that the whistleblower protection under section 47B of the ERA 1996 should be read in a way which protected employees who were considering making a protected disclosure because otherwise, whistleblowers would not be adequately protected. The ET highlighted that if this were not the case; an employer could act quickly to punish an employee before they make a protected disclosure and avoid liability for their actions.

Comment

Although this decision is only at the Employment Tribunal level, and so not binding on others, it could be important. BMS may not appeal because the value of the award made to the Claimant was only £2,500 but if other tribunals do take the same approach in regards to widening the scope of whistleblower protection, the issue may well make its way to the Employment Appeal Tribunal.

SAR Wars! Masterclass

Collingwood Legal is running a half-day SAR Wars! Masterclass on Thursday 19th September 2019 at Kingston Park Stadium. Our experienced lawyers, Paul Johnstone and Alexandra Besnard, will be delivering training on GDPR and how employers should handle subject access requests made by its employees. If you are interested then you can register your place here: https://www.eventbrite.co.uk/e/sar-wars-gdpr-v-hr-masterclass-19-september-2019-tickets-68966589927.

 

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