The Employment Appeal Tribunal (EAT) has confirmed in the case of Barton v Royal Borough of Greenwich, that an act which is not protected by the whistleblowing legislation cannot become protected by linking it to another act.
Under the Public Interest Disclosure Act (the “Whistleblowing Act”) employees are protected from being dismissed or subjected to some other detriment for making a “protected disclosure”. Whether an act amounts to a protected disclosure involves a two-stage test. First there must be a “qualifying” disclosure – a disclosure of specific facts or information. Secondly, the disclosure must be made in good faith and with the reasonable belief that the employer has committed a criminal offence or has failed to comply with a legal obligation.
Here, Mr Barton was employed by the Royal Borough of Greenwich. Mr Barton received a complaint from a colleague that his manager had forwarded “hundreds” of emails to her personal email account. The colleague believed that those emails contained his personal data and that the emails were not secure. Without seeking to establish the accuracy of this information, Mr Barton contacted the Information Commissioner’s Office (ICO) to inform them about alleged breaches of the Data Protection Act (DPA)
The Council met with the employee to tell him that they were investigating the matter. The Council instructed Mr Barton not to contact the ICO without prior authorisation but ignoring this, Mr Barton telephoned the ICO for advice. Mr Barton was summarily dismissed for failing to comply with a legitimate and reasonable instruction. The Council also found that there had been no breach of the DPA, given that only 11 password protected emails had been sent and they did not contain anything inappropriate.
Mr Barton brought a claim for unfair dismissal. The first email to the ICO was a disclosure, but it was found not to be protected because the employee could not reasonably have believed that there had been a breach of the DPA. The key issue was whether his subsequent telephone call to the ICO, being the reason for his dismissal, amounted to a protected disclosure. Both the Employment Tribunal and the EAT agreed that it did not. The EAT confirmed existing case law, that each disclosure must be considered in isolation and that the telephone call could not be aggregated with the employee’s first email to create one qualifying disclosure. In this case, the employee was calling to seek advice about his own employment situation, so it did not meet the first stage of the test.
The judgment in this case is very fact specific. Had Mr Barton telephoned the ICO to provide them with new information and had he reasonably believed that there had been a breach of data protection law, it is likely that the telephone call would have amounted to a protected disclosure. For this reason, employers should carefully consider any instruction not to contact an external body in relation to a whistleblowing complaint. Where a ban is appropriate and necessary, employers should consider limiting the ban to the length of any internal investigation and allow contact in circumstances where the employee has obtained their manager’s consent. Employers should also seek legal advice before taking disciplinary action against an employee in breach of such a ban. It is nevertheless heartening for employers to know that tribunals will adopt a discerning approach in cases such as these and that employees do not have carte blanche to bypass their employer simply because they have raised a concern that could amount to whistleblowing.
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