Whistleblowing - protected disclosures

The Employment Appeal Tribunal has considered whether an employer had acted fairly in dismissing an employee who made a disclosure to the Information Commissioner's Office without approval. Helen Hughes analyses the case.

In Barton v Royal Borough of Greenwich (Victimisation Discrimination: Whistleblowing) [2015] UKEAT 0041_14_0105 Mr Barton, who was employed as a tenancy relations officer at Royal Borough of Greenwich (Greenwich), was told by another colleague, that a manager had emailed hundreds of documents and emails to her home computer, which Mr Barton's colleague believed contained personal data. As a result, Mr Barton contacted the ICO via email requesting advice. Mr Barton considered that this was a breach of the Data Protection Act 1998 (DPA).

Following his disclosure to the ICO, Mr Barton then informed the head of Greenwich's community housing services. Greenwich then commenced an investigation into the issue and Mr Barton was told not to contact the ICO whilst the internal investigation was taking place. Mr Barton, ignoring this instruction, phoned the ICO to get their advice on whether Greenwich had authority to tell him not to contact the ICO. Greenwich then started a disciplinary process in relation to Mr Barton's failure to follow a reasonable instruction.

Another incident subsequently occurred where Mr Barton was alleged to have sent an inappropriate letter to a tenant, which led to a further disciplinary investigation. Mr Barton was already on a final written warning for an unrelated matter. Having taken the warning and the subsequent misconduct issues into account, Greenwich dismissed Mr Barton.

Mr Barton claimed that he had been unfairly dismissed for whistleblowing and sought to rely on the original email and subsequent phone call as a protected disclosure. As Mr Barton's disclosure was made to the ICO which is a 'prescribed person', his disclosure could only be protected if Mr Barton reasonably believed that the information disclosed and any allegation contained in it were substantially true under the relevant legislation.

Decision

The Employment Tribunal (ET) found that Mr Barton's email to the ICO could not be a protected disclosure because Mr Barton's belief in the allegations was not reasonable. Mr Barton had "jumped the gun" and should have verified the allegations before reporting them to the ICO. The ET also found that Mr Barton's email and phone call to the ICO could not be aggregated to form a single disclosure and that the two 'disclosures' had to be looked at separately. The ET found that the reason for Mr Barton's dismissal was misconduct and not as a result of any whistleblowing and that the dismissal was in the range of reasonable responses.

On appeal, the Employment Appeal Tribunal upheld the findings of the ET finding that "each disclosure must be considered separately".

Best practice

This case should not be viewed by employers as allowing them to restrict employees from contacting external authorities. Although the ET and the EAT viewed the instruction not to contact the ICO as reasonable in these circumstances, this is very specific to the facts of this case. Employers should encourage employees to report matters internally initially, however they cannot generally prevent employees from contacting external authorities.

This case highlights the considerations of a tribunal when determining whether an employee has made a protected disclosure. Employers should also bear in mind the need for an employee to establish a link between the disclosure and any subsequent dismissal in order to succeed in claiming unfair dismissal claim as a result of whistleblowing.

Helen Hughes is a solicitor at Veale Wasbrough Vizards. She can be contacted on 020 7665 0816 or This email address is being protected from spambots. You need JavaScript enabled to view it..