Whistleblowing - Sin in Haste, Repent at Leisure

In this article, we look at a recent case and the steps you can take to ensure you are not ignoring legal protection created by whistleblowing disclosures.

Okwu v Rise Community Action

Rise Community Action employed Miss Okwu as a specialist worker for domestic violence and female genital mutilation. Performance issues were raised during Miss Okwu's three month probationary period and Rise extended her probation by a further three months.

Miss Okwu then wrote a letter to Rise expressing several concerns in relation to her employment contract. The concerns also included an allegation that Rise was in breach of the Data Protection Act by failing to provide her with her own mobile phone and secure storage when dealing with sensitive and confidential information relating to service users. Rise dismissed Miss Okwu on performance and conduct grounds, and on the basis that her letter revealed her contempt for the charity.

Miss Okwu brought a claim against Rise that she was dismissed for making protected whistleblowing disclosures and that her dismissal was therefore automatically unfair.  The Employment Tribunal (ET) dismissed her claim on the basis that the issues she raised were personal contractual matters and not therefore in the public interest. Miss Okwu appealed.

Public Interest

The Employment Appeal Tribunal (EAT) allowed the appeal. The question was whether Miss Okwu had disclosed information that she reasonably believed was in the public interest and which tended to show breach of a legal obligation.

Although Miss Okwu's letter contained a lot of information that was personal to her, the EAT highlighted that her data protection disclosures related to the sensitive information of service users.  It was therefore hard to see how this was not in the public interest in the reasonable belief of Miss Okwu.

Was the Protected Disclosure the Reason for Dismissal?

The EAT also found that the ET did not make a clear finding in relation to the reason for Miss Okwu's dismissal. In particular, the ET did not engage with Miss Okwu's argument that there had been no performance or conduct issues between the probation review and the sending of her letter and that the disclosures in her letter must therefore have been a material factor in the decision to dismiss her.

The case has been remitted to the same tribunal to determine these points.

Best Practice for Employers

• Be careful not to dismiss complaints out of hand. You should deal with complaints using available internal processes such as grievance and whistleblowing procedures, and ensure those complaints do not inform detrimental management decisions in respect of the member of staff.
  
  
• Remember that complaints may include matters that amount to whistleblowing disclosures. This creates increased legal protections for those making them.
  
  

• Take care not to make knee-jerk decisions when sanctioning or dismissing staff.  Even where staff have less than two years' service, management decisions should be considered carefully and the reason for sanction or dismissal should be both clear, fair and backed up by documentary evidence.
  
  
• Ensure you have a robust whistleblowing policy in place and follow an established investigation process in the event of a complaint which may meet the definition of a whistleblowing disclosure.

For specialist advice on how to deal with a complaint, please contact Nick Murrell in our Employment Law team on 0117 314 5627 or complete the below form.