Learning point 4: a disclosure does not have to be either true or in the public interest to qualify for protection, provided the worker has a reasonable belief that both are the case

In part 1 of this blog series we noted that whistleblowing complaints are not always easy to identify and in part 3 we discussed the importance of being able to show why you treated an employee in a certain way. This week we have seen an EAT decision (Okwu v Rise Community Action) that neatly illustrates these learning points, plus a few more.

Miss Okwu started work with Rise Community Action, a small charity, subject to a three-month probationary period. As the charity had a number of concerns about Miss Okwu’s performance, it notified her that it would be extending her probationary period for a further three months. So far so good.

A week later, Miss Okwu wrote to RCA raising a number of matters about her employment, including concerns that it was acting in breach of the Data Protection Act by failing to provide her with her own mobile phone and with secure storage for her files, when she was dealing with sensitive and confidential personal information about her clients.

One further week later, seemingly having had a change of heart about extending her probationary period, RCA terminated Miss Okwu’s employment, citing its ongoing concerns about her performance and/or conduct. Miss Okwu brought Tribunal proceedings, claiming she had been unfairly dismissed for “blowing the whistle” (no qualifying period of service necessary), namely for raising concerns about alleged breaches of the DPA.

The Employment Tribunal rejected Miss Okwu’s claim on the basis that she had not made a “qualifying disclosure” for whistleblowing purposes. A key problem, it said, was the fact the matters raised by Miss Okwu concerned her own personal position and were not in the public interest, even those that related to potential breaches of the DPA. It also found that the information disclosed lacked sufficient detail to amount to a qualifying disclosure.

The EAT has overturned this decision. The question was not whether the matters raised by Miss Okwu were actually in the public interest but whether she had a reasonable belief that they were and that they tended to show a breach of the DPA. An easier hurdle for claimants to jump. The fact she clearly had a personal interest and motive in the matters did not in itself prevent the disclosure from also being in the public interest. In any event, her disclosure related to sensitive personal information relating to her clients, not strictly to her and it was therefore difficult to see how this would not be at least arguably in the public interest.

Learning points for HR:

1. When deciding whether a worker has made a “qualifying disclosure” for whistleblowing purposes, the focus is largely on what the employee reasonably believes at the time the disclosure was made. Workers may have protection even if the disclosure turns out not to be true and there is no public interest in it, provided they had a reasonable belief that both of these things were the case when they made it. Remember – a qualifying disclosure for whistleblowing purposes means a disclosure of information that, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show that one or more of the following has occurred, is occurring or is likely to occur: (i) a criminal offence; (ii) breach of a legal obligation; (iii) miscarriage of justice; (iv) danger to the health and safety of any individual; (v) damage to the environment; or (vi) the deliberate concealment of information about any of the above.

2. As highlighted in part 1, if an employee raises concerns about possible wrongdoing, including concerns that you as the employer are not complying with your legal obligations, it is usually safest to assume that they will be protected under the whistleblowing provisions and proceed accordingly. What seems to have happened here is that RCA did not appreciate that Okwu’s essentially personal concerns could also amount to a whistleblowing complaint which is why it presumably did not think there would be any risk in dismissing her (as she had less than two years’ service) rather than proceeding with its original decision merely to extend her probationary period.

3. The fact that a disclosure concerns an employee personally does not stop it from also being in the public interest for whistleblowing purposes. The courts have shown an increasing willingness to interpret the words “in the public interest” broadly. See our previous blog.

4. As highlighted in part 3, if you are going to treat an employee who has raised a possible whistleblowing allegation differently, ensure you can show why you treated them in that way – and that it’s not because they blew the whistle! In this case, Okwu argued that her dismissal must have been because she raised concerns about possible breaches of the DPA since up until that point her employer had only been intending to extend her probationary period. This is an argument that the EAT seems to have had some sympathy with, and as the Tribunal did not reach a clear conclusion as to the real reason for the dismissal, this question has been referred back to it to reconsider. The challenge for RCA will be to show why it decided to dismiss Miss Okwu at that time and that its decision was not motivated by her disclosure.

But what makes it reasonable for an employee to think something a matter of public interest? First, we must distinguish what is in the public interest (i.e. which would somehow better the condition or position of those affected) from what might interest the public (i.e. which might be salacious or trivial and of no positive value at all). But then the obvious problem is that at a societal level, it is in the public interest for the law and legal obligations to be respected, especially by those in positions of trust or power over others, like employers. So you end up with the conclusion that a purely personal gripe about a breach of your own employment contract might be hard to argue as having any public significance but as soon as you add in other people (the risk to RCA’s clientele) or other law or legal obligation (the Data Protection Act), the easier showing reasonable belief will be.