Yes, according to the Employment Appeal Tribunal in the recent case of Okwu v Rise Community Action.
Under the Employment Rights Act 1996 (“the ERA”), an employee is unfairly dismissed if the reason or principal reason for the dismissal is that they made a protected disclosure (s103A of the ERA).
Dismissal for making a protected disclosure (or for “blowing the whistle”) is, what is known as an “automatically unfair reason” for dismissal and, as such, there is no requirement for an employee to have the requisite 2 years’ continuous service normally needed to bring an unfair dismissal claim.
A protected disclosure is a disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and shows one or more of the following:
- that a criminal offence has been committed, is being committed or is likely to be committed;
- that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;
- that a miscarriage of justice has occurred, is occurring or is likely to occur;
- that the health or safety of any individual has been, is being or is likely to be endangered;
- that the environment has been, is being or is likely to be damaged or
- that information tending to show anything falling within any of the above has been, is being or is likely to be deliberately concealed.
Where an employee is bringing a claim for unfair dismissal under section 103A, the burden of proof falls upon the employee to show that they made a protected disclosure and that the protected disclosure (the “whistleblowing”) was the reason or principal reason for their dismissal.
Miss Okwu worked for Rise Community Action which is a charity that gives support to individuals affected by domestic violence, female genital mutilation or HIV. Miss Okwu was employed as domestic violence and female genital mutilation specialist worker and she was subject to a 3-month probationary period. After raising issues with her performance during her initial probationary period, the charity extended her probation period by a further 3 months. Shortly afterwards, Miss Okwu wrote to the charity raising concerns including that she believed the charity was in breach of the Data Protection Act by failing to provide her with her own mobile phone and with secure storage, when she was dealing with sensitive and confidential personal information.
After receiving her letter, the charity decided to terminate her employment. The reason they gave her for their decision was her poor performance but also the content of her letter which they felt demonstrated she had no respect for the charity.
Miss Okwu brought tribunal proceedings against the charity, claiming that she had been unfairly dismissed for making protective disclosures (“whistleblowing”).
When the case went before the Employment Tribunal, the Tribunal found that the issues raised by Miss Okwu were not in the public interest but were about her own contractual position. The Tribunal said that this included the matters relating to potential breaches of the Data Protection Act because they said these were raised by her in the context of her performance issues. In any event, the Tribunal held that she had not been dismissed because of the concerns she raised but because the charity had genuine concerns about her performance. The Tribunal dismissed her claim for automatic unfair dismissal due to a protected disclosure.
Miss Okwu appealed, and her grounds of appeal included that the Employment Tribunal had (1) made a mistake in its approach to the question of what a protected disclosure is and (2) had failed to make a proper finding about the reason for her dismissal.
The Employment Appeal Tribunal agreed with Miss Okwu and upheld her appeal on the two grounds mentioned.
The Employment Appeal Tribunal held that, whether or not the disclosure (relating to potential breaches of the Data Protection Act) was in the public interest, the question the Employment Tribunal should have asked was whether Miss Okwu had a reasonable belief that her disclosure was in the public interest. As the disclosure related to such sensitive information, the Employment Appeal Tribunal held that it was reasonable for Miss Okwu to come to this conclusion.
The Employment Appeal Tribunal also found that the Employment Tribunal had not made clear in its findings, what they considered to be the reason for Miss Okwu’s dismissal.
The case was sent back to the Employment Tribunal to reconsideration.
Points to consider
It is important to note that the test of what amounts to a reasonable belief that a disclosure is in the public interest, is both a subjective and objective one. The worker must genuinely believe that the disclosure is in the public interest, but that belief must also be objectively reasonable.
Also, it is worth noting that the case has been referred to the Employment Tribunal to decide whether the reason or the principal reason for Miss Okwu’s dismissal was because she made the protected disclosure (i.e. whether she was unfairly dismissed for whistleblowing). So, although Miss Okwu won her appeal, she still must persuade the Tribunal that the charity acted unlawfully in dismissing her.
Action to take
- If you receive a grievance from an employee or worker, always consider whether the complaint could constitute a “protected disclosure”, bearing in mind that the subjective beliefs of the employee or worker are relevant.
- If it could be a “protected disclosure”, ensure it is investigated thoroughly and dealt with in accordance with your whistleblowing policy or grievance procedure.
- Where a complaint is not upheld, make sure that the worker is not unfairly treated in any way for making the claim, unless you conclude that the worker made the false accusations maliciously, in which case disciplinary action may be taken.
- If a complaint is upheld, take appropriate action which could include taking disciplinary action against the wrongdoers or reporting the matter to the appropriate authority.