24th June, 2015

What is the Meaning of Disclosure in Whistleblowing Claims?

In the recent case of Barton v Royal Borough of Greenwich, the EAT considered whether a disclosure which was not protected could be converted into a protected disclosure by linking the unprotected disclosure to one that is protected.

A protected disclosure is a disclosure of information in which the reasonable belief of the worker making it shows that one of the six specified types of malpractice has taken place:-

• criminal offence;
• breach of any legal obligation;
• miscarriage of justice;
• danger to the health and safety of any individual;
• damage to the environment;
• deliberate concealing of any information about any of the above.

Barton (the “Claimant”) alleged that a colleague had sent hundreds of emails and documents out of Greenwich Council’s (the “Respondent”) secure system which contained personal data. The Claimant informed the Information Commissioners Office (ICO) via it’s website, and then sent an email to the ICO requesting its advice.

The Claimant was instructed by the Respondent not to contact the ICO again without prior authorisation and that in the first instance he should have sought advice from his line manager, prior to contacting the ICO.

Despite the Respondent’s instruction, the Claimant then telephoned the ICO to ask whether the Respondent had authority to tell him not to contact them. The ICO said that they did not.

Following an investigation into the alleged breach of confidentiality, it was revealed that the Claimant’s colleague had in fact emailed a total of 11 documents to her own personal email account, none of which were confidential in any way.

The Claimant was subject to a disciplinary investigation in relation to his failure to comply with the instruction not to contact the ICO, and following a separate and unrelated act of misconduct, the Claimant was dismissed.

In considering whether the communication between the Claimant and the ICO were protected disclosures, the Tribunal rejected the Claimant’s argument that they should be considered as a combined disclosure and the Tribunal dismissed the Claimant’s whistleblowing claims. The Claimant appealed to the EAT which rejected the argument that the email and telephone call could be combined to form a single protected disclosure. Each disclosure must be considered separately.

In this instance the Respondent’s instruction was reasonable. Employers should encourage employees to report matters internally in the first instance. It is important that employer’s whistleblowing policies are communicated to all employees and are up to date to encourage early reporting, and ensure robust reporting procedures are in place, which will protect both the employee and employer.

For further advice or guidance in relation to whistleblowing, please do not hesitate to contact Claire Brook on email 01244 405 575 or [email protected].

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