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Another thorn in the side for employers defending whistleblowing claims

When the revised whistleblowing legislation came into force in 2013, introducing a requirement that a disclosure must (in the whistle-blower’s reasonable belief) be made “in the public interest”, the perception was that this was a helpful development for employers, making it harder for workers to gripe about their own personal circumstances but still benefit from whistle-blowers protection.

However, the controversial Court of Appeal case of Chesterton v Nurmohamed in 2017 held that making a complaint about one’s own contract could meet the public interest test, which diluted the regulations down more than a value lager.
 
The case of Okwu v Rise Community Action might be a further cause for concern to employers.  The case held that whether or not a protected disclosure is in the public interest,  it is sufficient that the employee has a reasonable belief that it was.
 
The facts, insofar as they are  relevant for this article, are that Rise is a small charity, providing support for individuals affected by domestic violence. Miss Okwu started employment with Rise on 15 November 2017. Rise were not convinced by Miss Okwu’s performance and, on 14 February 2018, extended her probationary period for a further 3 months. On 21 February 2018, Miss Okwu raised some concerns with Rise, which included a ‘disclosure’ that they were acting in breach of the Data Protection Act by failing to provide her with a work mobile and secure storage, given she was dealing with sensitive personal data.

Rise subsequently terminated Miss Okwu’s contract on performance grounds and referred to numerous problems with her performance in the dismissal letter. Miss Okwu claimed she had been unfairly dismissed for making protected disclosures.

At first instance, the Employment Tribunal (‘ET’) held Miss Okwu’s ‘disclosures’ were not in the public interest given they related to her own employment contract and her allegations lacked sufficient detail to amount to a qualifying disclosure.  The ET found that Miss Okwu had not been dismissed for her alleged whistleblowing and accepted that the Respondent had genuine concerns about her performance and dismissed Miss Okwu by reason of her performance. Miss Okwu appealed, contending the ET had erred in its approach to the question of protected disclosure and had failed to make proper findings about the reason for the dismissal.
 
Cue the Employment Appeals Tribunal ('EAT'), who took a much more cautious approach. 
 
The EAT held that the ET had failed to ask whether Miss Okwu had a reasonable belief that her disclosure was in the public interest. Given the sensitive information involved, it was hard to see how it could not have been. Miss Okwu’s appeal was allowed and the issues of her protected disclosure and reason for dismissal were remitted to the same ET for reconsideration.

What does this mean for you or your business?

This case serves as a useful reminder to employers that if a worker has a reasonable belief that whistleblowing allegations are true, then the worker could benefit from whistleblower protection (namely protection from detriment and dismissal for blowing the whistle) even if they are not.

Remember that compensation for a whistleblowing dismissal is uncapped so this can prove to be a very risky and expensive area if things go wrong. 

What do you need to be doing now?

You should treat all potential whistleblowing complaints seriously and commence a full investigation.  You should have a specific whistleblowing policy and you should act in accordance with it. Do not dismiss a whistleblowing complaint on the basis that it is not true – because if the individual reasonably thinks it is, then the employer may already be at risk.

Recommended Reading

Supreme Court Rules that Employment Tribunal Fees were unlawfully implemented

Employment Tribunal Fees - The floodgates have opened

 

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.

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