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05 November 2019

200: Employment Tribunal misapplied public interest test in whistleblowing claim

In order to be protected under the whistleblowing legislation, a disclosure must be made in the reasonable belief that it is in the public interest. This requirement was included in order to prevent workers claiming whistleblowing protection in relation to complaints about their own contract or working conditions. However, as the recent case of Okwu v Rise Community Action illustrates, it can still be difficult to distinguish between protected disclosures and personal grievances.

Miss Okwu was employed by Rise Community Action, a charity which supports victims of abuse. Due to concerns about her performance, Miss Okwu’s probationary period was extended by three months. She responded by submitting a letter complaining of a lack of pension and written statement of terms, lack of internet access, the fact that she had to use a shared mobile phone to speak to clients and the lack of secure file storage. She also stated that, given the sensitive nature of her work, sharing a phone and insecure file storage were in breach of data protection legislation. The charity then dismissed her for poor performance, and Miss Okwu brought a claim for unfair dismissal on whistleblowing grounds.

The Employment Tribunal dismissed her claim, ruling that her letter was not a qualifying disclosure because it concerned only personal contractual matters and did not have a sufficient public interest element. It also held that, in any event, her letter had not been the reason for her dismissal, since there was evidence of performance issues.

The Employment Appeal Tribunal (the EAT) has now upheld Miss Okwu’s appeal, ruling that the Employment Tribunal had misapplied the public interest test. The key question was whether she had a reasonable belief that her disclosures were in the public interest, not whether they were actually in the public interest. Given the highly sensitive nature of the charity’s work, the issues Miss Okwu had raised concerning file storage and the shared mobile phone clearly related to a potential breach of the Data Protection Act 1998. It was hard to see how her letter would not, in her reasonable belief, be a disclosure made in the public interest. The EAT therefore sent the case back to the Tribunal to reconsider this question.

Since the Tribunal had failed to make a clear finding as to the reason for Miss Okwu’s dismissal, beyond noting that there had been evidence of performance issues, the EAT also asked for reconsideration of the reason for dismissal.

This decision highlights that public interest does not need to be the only motivation for making a disclosure, and that the worker only needs to have a reasonable belief that an allegation is true.  It is therefore important to consider carefully any concerns raised by a worker about their personal contractual position to assess whether there is also a potential public interest element.  This is particularly important given that there is no financial limit on compensation for whistleblowing claims.

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