EAT Victimisation Discrimination: Whistleblowing – UNFAIR DISMISSAL – Automatically unfair reasons
The Claimant was an employee of the Respondent and had at one time been an elected shop steward and health and safety representative.
He received a concern from a work colleague that his line manager had emailed a large number of documents to her home (‘hundreds’) which he believed contained confidential or personal data about himself and her personal email was not part of a secure system nor encrypted. The Claimant considered that this was a significant breach of the Data Protection Act 1998.
He did not report the matter to his line managers but reported his concerns to the Information Commissioner’s Office (‘ICO’), and thereafter to his line managers. Having consulted the ICO website, he telephoned the advice line to clarify his understanding of the Data Protection Act. The information he provided was wholly inaccurate. The manager had emailed 11 documents to her home email which was password protected. None of the documents were regarded as inappropriate for her to have sent.
Having established that the Claimant had referred the matter to the ICO without first referring it to his line manager, the Claimant was informed that he should have referred the matter to his line managers before raising concerns with the ICO, and was specifically instructed not to contact the ICO or other external bodies in relation to the matter without the prior authority of his line manager. He was told that the Respondent would investigate the concerns promptly, as it did.
The Claimant took it upon himself to telephone the ICO to seek advice as to what he should do about the instruction. The Respondent regarded the Claimant’s action in contacting the ICO despite having been instructed not to do so as a serious breach of duty and he was summarily dismissed. He was at the time subject to a final written warning in relation to an unrelated matter and also found to have committed gross misconduct by writing an inappropriate letter in the course of his duties, as a tenancy relations officer, to a member of the public.
The Claimant claimed that he had been unfairly dismissed for whistleblowing and relied on the original communication with the ICO and the subsequent telephone call as protected communications.
The Employment Tribunal found that the original referral was a qualifying disclosure but not a protected disclosure because the Employment Tribunal did not consider that the Claimant held the requisite reasonable belief that the information he disclosed tended to show that the Respondent had failed, or was failing, to comply with its obligations under the Data Protection Act. The subsequent telephone call was not a qualifying disclosure because there was no disclosure of information.
The Employment Tribunal considered that the two disclosures had to be considered separately. On appeal the Respondent sought to argue that the two disclosures could be aggregated so that together they constituted a protected disclosure. On appeal the Claimant sought to argue that the instruction not to contact the ICO was unlawful, contrary to public policy and a breach of Article 10 of the European Court of Human Rights (the illegality point).
The Employment Appeal Tribunal following Bolton School v Evans [2007] ICR 641 held that the telephone call could not be treated as part of the original referral and could not on its own constitute a qualifying disclosure in the absence of disclosure of ‘information’. The illegality point had not been argued below and the Employment Appeal Tribunal, following the authority of Kumchyk v Derby City Council [1978] ICR 1116, declined to entertain the point; but had it done so, it would have rejected the illegality point on the facts as found by the Employment Tribunal and because the Employment Tribunal was satisfied that there was a reasonable basis for the belief by the dismissing officers that the instruction not to contact the ICO was legitimate and reasonable, there were reasonable grounds for the belief that the Claimant had breached a legitimate and reasonable instruction.
Appeal dismissed.
Serota QC HHJ
[2015] UKEAT 0041 – 14 – 0105
Bailii
England and Wales
Employment
Updated: 30 December 2021; Ref: scu.546435
