03 October 2019

Employees who, at the effective date of termination of employment, do not have the required 2 years’ continuous service, cannot claim “normal” unfair dismissal. They can, however, bring a claim if they assert that the reason for dismissal was that they had carried out a protected act.

There are many of these protected acts, and one is that the employee made a protected disclosure under the whistleblowing legislation. To dismiss an employee for doing so is “automatically unfair” (and there is no upper limit on the compensation that can be awarded).

There are a number of tests to be met for a disclosure of information to be protected – for example, it must show that certain types of wrongdoing are being carried out, or may be carried out, or are being covered up.

One of the trickiest parts of the definition is that the employee disclosing the information must reasonably believe it to be in the public interest. That is intended to stop employees arguing that purely personal complaints about how the employer is treating them are protected disclosures.

In the recent case of Okwu v Rise Community Action the Employment Appeal Tribunal (“EAT”) overturned a tribunal decision that the employee had not made protected disclosures and therefore had not been automatically unfairly dismissed.

The employee had raised a number of concerns with the employer, which she said led to her dismissal. She complained to them about:

• Pension provision
• She had not been issued with terms of employment nor a lone working policy
• Issues with her payslip
• The employer had not issued her with a dedicated phone/internet access which she considered breached data protection rules given the sensitive nature of the information she was handling in relation to service users

The tribunal considered these were all “personal matters which affected her personally” and were not “in the public interest” so rejected the claim of automatically unfair dismissal.

In relation to the final complaint point, the EAT overturned the tribunal’s decision. It appeared that the tribunal had asked the wrong questions by considering whether the allegation was true, and whether it was in the public interest. The correct test was whether the Claimant reasonably believed the disclosure was in the public interest. The EAT felt that it was likely that this test was met, given that the concern related not just to the Claimant but to the personal information of service users.

This decision is a useful reminder that the scope of whistleblowing protection is wide. Even if a concern turns out to be wholly unfounded, the disclosure is protected if the employee reasonably believed that the information showed there was wrongdoing, and reasonably believed that the disclosure was in the public interest. There is no longer any requirement that the disclosure be made in “good faith”. Employers must therefore exercise considerable caution when employees raise any concerns about wrongdoing, breaches of legal obligations etc. A robust whistleblowing policy should be in place and management should be trained in relation to whistleblowing issues.

For more information contact any member of our employment law team employment law team.

 Contact: Douglas Strang, Senior Associate dst@bto.co.uk T. 0141 221 8012