When claiming unfair dismissal for making a protected disclosure (blowing the whistle), claimants have to show a “reasonable belief” that it was made in the “public interest”. In Okwu v Rise Community Action the Employment Appeal Tribunal (EAT) held that the issue for tribunals was not whether the information disclosed was true but whether the claimant reasonably believed it to be in the public interest.
Basic facts
Ms Okwu started working on 15 November 2017 for Rise, a small charity supporting individuals affected by sensitive issues such as female genital mutilation. Her three-month probation period was extended for a further three months by letter on 14 February 2018 after she failed to achieve certain targets.
In her reply dated 21 February, Ms Okwu voiced concerns that the charity was acting in breach of the Data Protection Act by failing to provide her with her own mobile phone and with secure storage for clients’ sensitive and confidential personal information. She also complained that she had not been provided with certain contractual documentation. She was then dismissed on 28 February for her “unsatisfactory work performance”.
She claimed that she had been unfairly dismissed for making protective disclosures under section 43B(1) of the Employment Rights Act 1996 (ERA).
Relevant law
In order to fall under section 43B(1), a protected disclosure must be a disclosure of information which “in the reasonable belief of the worker” is made “in the public interest” and also “tends to show” that: a) a criminal offence has been committed; b) that a person has failed to comply with a legal obligation; c) that there has been a miscarriage of justice; d) that someone’s health or safety is in danger; or e) that the environment is in danger.
Tribunal decision
An employment tribunal found that the issues raised by Ms Okwu were personal matters concerned mainly with her contract of employment, her induction and the charity’s alleged failure to provide her with certain equipment.
As these matters were to do with her contract and, in any event, were not set out in sufficient detail, they were not “qualifying disclosures” and did not therefore fall within the remit of section 43B. Instead, Ms Okwu had been dismissed because her employer had genuine concerns about her performance.
Ms Okwu appealed arguing (among other things) that the failure to provide her with a dedicated phone or access to locked filing cabinets did not just relate to her personally but also potentially affected the secure storage of sensitive information relating to as many as 25 clients.
EAT decision
Allowing her appeal, the EAT held that even if Ms Okwu was primarily raising issues that related to her contract, she could also reasonably believe that her disclosure was in the public interest. In other words, the public interest requirement did not have to be her only motivation.
Although the tribunal did not consider that the disclosures in her letter of 21 February were set out in enough detail, the EAT held that they were “clearly particularised” and therefore capable of “tending to show” a breach of an obligation of the DPA. In any event, the point for the tribunal to consider was not whether the information was true but whether Ms Okwu reasonably believed it to be in the public interest and which “tends to show” one of the things listed in section 43B.
Finally, the EAT agreed with Ms Okwu that the only thing that had happened between the extension of her probation period and her dismissal was her letter referring to the protected disclosures. As the tribunal had failed to consider that this could have been the reason for her dismissal, it had failed to fully consider why she had been dismissed.