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Understanding this latest decision on the definition of a legally protected disclosure will help you to identify whether a concern raised by a worker is covered by whistleblowing legislation, thereby potentially triggering additional legal protections for the worker in question.
The Public Interest Disclosure Act 1998 introduced UK whistleblowing legislation. One of the main reasons that this legislation was passed was due to various infamous workplace scandals which may have been prevented if the employees and workers involved had felt protected enough to speak out. Employees who make a disclosure of wrongdoing which is protected under whistleblowing legislation are protected from dismissal and detriment, and their compensation is uncapped.
Back in 2001, the case of Parkins v Sodexho, extended protection for whistleblowers when the EAT held that employees could bring a claim against their employer on the basis that there was a failure to comply with provisions contained within their own employment contracts – contrary, some argued, to public interest rationale behind the legislation.
In order to close down this apparent discrepancy, on 25 June 2013, the law surrounding this area changed: since then, whistleblowing protection only arises if the individual making the disclosure reasonably believes that their disclosure is in the public interest; the test for this being subjective. It is, therefore, what the whistleblower reasonably believes is in the public interest which is of importance when you are considering whether a protected disclosure has been made; not whether the disclosure (objectively) is in the public interest. In the following case, the EAT considered the question of whether a whistleblower was reasonable in believing that her disclosures were in the public interest.
Rise, the Respondent in this case, is a small charity, offering support for people affected by domestic violence, HIV or female genital mutilation. The Claimant, Miss Okwu, was employed by Rise as its domestic violence and female genital mutilation specialist worker, subject to a three month probation period.
Issues were raised in relation to Miss Okwu's performance, and as a result, her probation period was extended by a further three months. Subsequent to this, Miss Okwu wrote to Rise, expressing concerns that Rise were in breach of the Data Protection Act by failing to provide her with her own secure mobile phone when she was dealing with sensitive and confidential information. Miss Okwu was later dismissed, and brought claims against Rise, alleging that she was automatically unfairly dismissed on the grounds of making a whistleblowing disclosure.
An Employment Tribunal (ET) found that the issues raised by Miss Okwu were not within the public interest and instead concerned her own contractual position and performance concerns. The ET accordingly dismissed Miss Okwu's claim. Miss Okwu appealed to the EAT on three grounds, namely that the ET
The EAT allowed the appeal on grounds 1 and 2, but disagreed on ground 3. In particular, their position was that the ET had failed to ask the crucial question: whether Miss Okwu had reasonably believed that her disclosure was within the public interest. The EAT considered the case of Chesterton Global v Nurmohamed, which held that there is no 'white line' between personal and public interest – there can be mixed interests – so it is for tribunals (and, by extension, employers) to determine whether there is sufficient public interest for a concern to fall within whistleblowing legislation.
In Miss Okwu's case, the EAT felt that nature of her complaints relating to the Data Protection Act meant it was easy to see how Miss Okwu might reasonably have thought her concerns had a public interest element – even though they also concerned her own working arrangements.
Whilst this decision does not have a direct impact on the drafting of your whistleblowing policies and procedures, it demonstrates the approach that you should take when considering whether whistleblowing protections might apply to a concern which has been raised.
Following the trajectory of previous case law on the remit of whistleblowing legislation, the EAT in this case has again taken a fairly broad approach, so prudent employers would be well advised to follow suit.
This case is also a useful reminder that the key question is whether a claimant is reasonable in thinking that they have made a public interest disclosure; not whether the disclosure is, in fact, in the public interest.
Contributors: Nicky Beach and Sarah Maddock
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at September 2019. Specific advice should be sought for specific cases. For more information see our terms and conditions.
06 September 2019
by Stuart McBride