Julie Dunane CG Professional

Whistleblowing; Is It In The Public Interest?

Julie Duane, Legal Counsel at CG Professional.

In the recent case of Okwu v Rise Community Action (A company limited by guarantee) UKEAT/0082/19/00 a Tribunal was tasked with assessing whether a disclosure made by the Claimant was deemed to be in the public interest.

The Facts

The Claimant was employed as a domestic violence and female genital mutilation specialist worker. As part of the Claimant’s role, she was required to provide support for individuals affected by domestic violence, genital female mutilation and/or HIV. The Claimant commenced her employment on 15 November 2017 which was subject to a three-month probationary period. Due to various performance issues relating to the Claimant’s substandard work, her probation was subsequently extended for a further three months on 14 February 2018. 

Shortly after the extension of her probationary period, on or around 21st February 2018, the Claimant wrote to the Respondent raising a protected disclosure; alleging that the Respondent had failed act in accordance with the Data Protection Act.  The Claimant alleged that the Respondent had failed to provide her with a work phone with secure storage when dealing with sensitive and confidential personal information. A few days after the disclosure the Respondent sought to terminate the Claimant’s employment on 20 February 2018 on grounds of capability.

Shortly thereafter the Claimant submitted a claim for automatically unfair dismissal due to her making a protected disclosure in accordance with section 43B of the Employment Rights Act 1996.

Employment Tribunal (First Instance)

At First Instance the Employment Tribunal rejected the Claimant’s case of automatically unfair dismissal, holding that the allegations raised by the Claimant were not in the public interest, but in respect of her own contractual position.  The Tribunal went on to state that the purported breaches were raised in relation to her own performance issues and that the information provided by the Claimant lacked sufficient detail in order to constitute a protected disclosure.

The Claimant subsequently appealed to the Employment Appeal Tribunal.

Employment Appeal Tribunal (EAT) Decision

The EAT held that the Tribunal erred in its approach and failed to apply the correct test when assessing whether the Claimant disclosed information that she reasonably believed was within the public interest.  The EAT also held that the ET failed to provide an adequate explanation for the rejection of her claim.

The EAT observed that taking into account the nature of the protected disclosure, it would be difficult to state that the Claimant did not have a reasonable belief that this disclosure was being made in the public interest.  The EAT, therefore, remitted the case back to the same Tribunal for reconsideration.

If you have any questions regarding this matter or would like to discuss an employment query, please do not hesitate to contact a member of the CG Team who will be happy to assist.