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Whistleblowing: Meaning of Disclosure

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 Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Can disclosures that are not protected disclosures be converted into them by linking them together?

No, held the EAT in Barton v Royal Borough of Greenwich, dismissing the Claimant's appeal.

The Claimant had emailed the Information Commissioner's Office (ICO) after a work colleague at Greenwich Council informed him that a manager had insecurely emailed home hundreds of documents containing personal data. That allegation was wide of the mark, and the Claimant had not checked the basis of it with his employer, he could have done so. The Council instructed him not to contact the ICO about the matter during its investigation, but he then phoned the ICO to discuss that instruction. He was dismissed for misconduct by breaching a reasonable instruction, being already on an unrelated conduct final written warning.

The Claimant lost at the employment tribunal, the Claimant did not have a reasonable belief that the contents of his email to the ICO were true, so it was not a protected disclosure, and his dismissal was fair because of conduct. His various grounds of appeal were rejected.

The EAT rejected an argument that the Claimant's phone call to the ICO could be aggregated to his initial email, so as to make a protected disclosure, 'each disclosure must be considered separately' following Bolton School v Evans. The phone call's purpose was to seek advice on the Claimant's employment situation, it could not have been a protected disclosure, with the ICO not being prescribed for that purpose. The judgment contains a useful analysis of competing reasons for dismissal where a potentially fair reason competes with automatically unfair reasons.

The EAT declined to consider if it was illegal for the Council to have instructed the Claimant not to contact the ICO about the investigation, illegality was a new point on appeal, not raised at the employment tribunal, but it did suggest obiter that it would not have upheld that argument on the facts.