Protected disclosures or “whistleblowing” is a tricky subject and for a protected disclosure claim to be successful, it must first pass a number of tests. One of which is the ‘public interest’ test, i.e., is the information being disclosed in the public’s interest? If it is not, then it will not amount to a protected disclosure.
The recent case of Okwu v Rise Community Action has given us some further guidance on this part of the test.
Rise Community Action (Rise) was a small charity that employed Ms Okwu as a specialist worker to provide support for victims of domestic violence and female genital mutilation.
Rise asserted that there were issues with Ms Okwu’s performance and decided to extend her probationary period by three months on the 14 February 2018.
Ms Okwu wrote to Rise on the 21 February, raising a number of concerns relating (but not limited to):-
- Rise’s failure to provide information regarding her pension;
- Rise’s failure to provide her with a written statement of her terms of employment;
- the fact that she was required to use a shared mobile phone for dealing with clients of Rise; and
- Rise’s failure to provide secure file storage for her when she dealt with clients.
Ms Okwu stated that the last two items in the list above were failures to comply with the then Data Protection Act 1998 and amounted to protected disclosures that were in the public interest.
Ms Okwu’s employment was terminated on the grounds of poor performance. However, Rise went on to state in their termination letter, dated 28 February 2018, that the decision had been compounded by her own letter which it said “demonstrated [her] contempt for the charity”.
Naturally, Ms Okwu brought a claim for her alleged protected disclosures. Remarkably, the Employment Tribunal (ET) found that her disclosures were regarding her personal contractual matters and “relate to her and nobody else”.
The case was dismissed.
Employment appeal tribunal
Ms Okwu, rightfully, appealed to the Employment Appeal Tribunal (EAT) who confirmed that the ET had erred in its judgment that the last two disclosures were not in the public interest. In coming to its conclusion, the ET had failed to ask itself whether Ms Okwu had a reasonable belief that her disclosures were in the public interest.
The EAT has remitted the case for a re-hearing, so watch this space!
With the greatest deference to the ET, it is difficult to see how the last two of Ms Okwu’s disclosures wouldn’t be in the public interest. If she is dealing with clients about these particularly sensitive subjects then she undoubtedly needed to be provided with her own mobile and have somewhere to store the information.
It is not uncommon when someone is being disciplined or performance managed for them to raise allegations, as Ms Okwu did. This case is a stark reminder that if you have a good rationale for your actions and a process in place, stick to them, do not diverge and start throwing other issues in, as tempting as it might be. Instead, take a step back and give serious consideration to what they are saying and think, does this meet the requirements of a protected disclosure? Remember that the disclosure’s primary motive does not need to be a protected disclosure and may be used to lash out.
In this case, Rise have undermined their own position by terminating Ms Okwu’s prior to the end of the extended probationary period and by stating in their termination letter that this was due, in part, because of her letter.
The risk being that claims for protected disclosures do not require a qualifying period and can result in uncapped compensation.
We appreciate that this area is particularly complex and so if you have any questions on assessing whether a disclosure of information is a protected disclosure, some training for your organisation or you just want a hand in drafting your policy, do not hesitate to contact a member of the employment team.