Whether or not a protected (whistleblowing) disclosure is in the public interest, is it sufficient that the employee has a reasonable belief that it was?
Yes, held the EAT in Okwu v Rise Community Action.
Rise was a small charity, providing support for individuals affected by domestic violence, female genital mutilation or HIV. It employed Miss Okwu as a domestic violence and female genital mutilation specialist worker. Having raised a number of issues regarding her performance, Rise extended her probation period by three months.
She then wrote to Rise raising a number of concerns that Rise was acting in breach of Data Protection legislation by failing to provide her with her own mobile phone and with secure storage, when she was dealing with sensitive and confidential personal information. Her employment was then terminated on performance grounds. She claimed she had been unfairly dismissed for making protected disclosures.
An employment tribunal found that the matters raised by the Miss Okwu were not in the public interest but concerned her own contractual position and even matters relating to potential breaches of the Data Protection Act were raised as relevant to her performance issues. Her claim was dismissed.
On appeal, the EAT considered that the tribunal had erred in its approach. Whether or not the disclosure was in the public interest (or true), the tribunal had failed to ask whether Miss Okwu had a reasonable belief that her disclosure (relating to potential breaches of the Data Protection Act) was in the public interest. Given the sensitive information involved, said the EAT, it was hard to see how it could not have been. The case was remitted to the tribunal for reconsideration.
Thanks to John McMullen of Stone King for preparing this case summary.