In Okwu v Rise Community Action, the Employment Appeal Tribunal (EAT) has considered whether an employee’s disclosure of alleged breaches of data protection legislation was a qualifying disclosure for the purposes of whistleblowing protection.
The claimant, Ms Okwu, was employed by the respondent charity as a caseworker, helping those affected by domestic violence, female genital mutilation or HIV.
Performance concerns were raised during her probationary period, which led to her probation being extended for 3 months. This was confirmed in writing to the claimant. In response, the claimant wrote to the charity, raising a number of concerns, including that:
- she had not been given an employment contract;
- she had no internet access for the first 6 weeks of her employment;
- the charity had not provided her with her own mobile phone; and
- the charity did not have a secure way to store information about those she was helping which, she alleged, was not compliant with data protection legislation.
Following receipt of this letter, the charity dismissed the claimant, citing performance grounds as the reason. The claimant brought employment claims against the charity, alleging that she was unfairly dismissed for having made protected disclosures.
The employment tribunal rejected her unfair dismissal claim. Its principle finding was that the concerns raised by the claimant were personal to her and were not in the public interest. Specifically, the data protection allegations were raised simply in the context of the performance concerns and were not motivated by the public interest.
The claimant appealed.
The Employment Appeal Tribunal upheld her appeal. It held that the tribunal had failed to consider the correct test. It had failed to consider whether the claimant had a reasonable belief that her disclosures were in the public interest. Instead, the tribunal appeared to have considered whether the disclosures actually were in the public interest and why the claimant had made them, neither of which were relevant to her belief.
The EAT went on to say that, given the type of disclosures made and the nature of her work, it was difficult to see how it would not have been her belief that the disclosures were in the public interest.
The EAT sent the case back to the tribunal to reconsider its decision.
The case is a useful reminder that the correct test for determining whether a disclosure is a protected one under whistleblowing legislation, is whether the employee had a reasonable belief that the disclosure was in the public interest.
It is also a useful example of the dangers of employers not following through a stated intention. In this case, the employer had extended the employee’s probationary period for 3 months but opted to dismiss her within a couple of weeks of this extension. Had it delayed dismissal until the end of the extended probation, a case may never have been brought.