Case law: Worker’s reasonable belief their whistleblowing is in the public interest is enough to protect them from dismissal
Employers should be aware that issues raised by a worker in relation to their personal situation, such as issues relating to their work performance, can amount to protected disclosures (ie, whistleblowing) if the worker reasonably believes raising them is in the public interest.
This update was published in Legal Alert - October 2019
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A small charity extended the probation period of a new worker by three months after raising concerns about her performance.
Her work required her to deal with personal, sensitive data about clients. She had complained to her employer that it had not given her a separate mobile for work purposes, or access to secure storage, and she was concerned this may have meant data protection laws were being broken.
When she was dismissed on grounds of her performance she claimed she had been dismissed for whistleblowing – making ‘protected disclosures’ - about her employer’s potential breaches of data protection law. A dismissal for whistleblowing is automatically unfair if the relevant disclosure is in the public interest.
The employer argued that her disclosures were made because of her own contractual position given its concerns about her performance, and not in the public interest.
The Employment Appeal Tribunal found that the proper issue to consider was whether the worker reasonably believed her disclosure was in the public interest. Its view was that taking into account the sensitivity of the personal data, it was hard to see how it could not have been in the public interest. The fact the disclosures also related to the worker’s own situation at work were not conclusive evidence, on their own, that the disclosures were not being made in the public interest.
The matter was referred back to the Employment Tribunal to reconsider.
- Employers should be aware that issues raised by a worker relating to their own personal situation, such as issues relating to their performance at work, can still amount to protected disclosures (whistleblowing) if the worker reasonably believes raising them is in the public interest.
Case ref: Okwu v Rise Community Action Ltd UKEAT/0082/19/OO
Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.
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