Is it enough for an employee to hold a reasonable belief that a disclosure is in the public interest (even if it may not be) to have protection as a whistleblower?
Okwu v Rise Community Action
Miss Okwu was employed by Rise Community Action, a small charity providing support for individuals affected by domestic violence, female genital mutilation or HIV. Her specific role was a domestic violence and female genital mutilation specialist worker. 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.
She submitted a letter to the charity complaining of lack of pension or written statement of terms, lack of internet access, the fact that she had to use a shared mobile phone for dealing with clients and the lack of secure file storage. The latter two points she stated were in breach of the Data Protection Act 1998, given the sensitive nature of her work.
Her employment was terminated on performance grounds. She claimed to have been a whistleblower and that she had been unfairly dismissed for making protected disclosures.
The Employment Tribunal dismissed her claim for unfair dismissal. It held that her letter was not a qualifying disclosure, as it concerned “personal contractual matters” which “related to her and nobody else” and did not carry sufficient public interest. In any event, it held that the letter had not been the reason for dismissal, which was performance. Miss Okwu appealed the decision.
On appeal, the Employment Appeal Tribunal found that the tribunal had misapplied the public interest test in relation to the shared mobile phone and file storage issues. The key question isn’t whether the issues raised wire in the public interest, but whether Miss Okwu reasonably believed them to be in the public interest.
It found that the matters raised by Miss Okwu clearly referred to breaches of obligations under the Data Protection Act 1998 and so it was difficult to understand how she could not have believed her disclosures to be in the public interest.
Whistleblowing is particularly complex for both employees and employers. In order to qualify for protection, employees have to overcome a number of hurdles about the nature and subject matter of their disclosure and why they believed they were making it, including whether it was in the public interest. If they have been subjected to a detriment or dismissed, they also have to link the disclosure to the detriment or dismissal, either as the sole reason or the principal reason for the treatment.
Conversely, employers face the prospect of fighting whistleblowing claims against employees who have less than 2 years’ service, which isn’t required to bring such a claim and also unlimited compensation where claims are well-founded. Whilst it is uncommon for costs to be awarded in the employment tribunal, whistleblowing claims result in the highest number of costs awards against claimants, likely reflective of short-serving employees trying to bring themselves within the definition of a whistleblower where they would otherwise be unable to claim.
Where an employee makes what could be a protected disclosure, employers need to redouble their efforts to ensure no detriments or dismissals result from it. If the employee is being dismissed for another reason, employers must ensure there is a paper trail whih points clearly away from the disclosure being the reason for the dismissal.
We will be covering whistleblowing at our upcoming employment law update seminars, pdetails of which can be found here.
If you have any queries in relation to whistleblowing or any other HR queries please contact our employment team on 01228 552600 or 01524 548494.