Was disclosure in the public interest when made in defence of concerns about poor performance?

EAT rules that a partly self-interested disclosure could still pass the public interest test

Workers are protected from detrimental treatment as a result of making a protected disclosure (or 'whistleblowing'). For a worker to be protected as a whistleblower, they must make a qualifying disclosure to a prescribed recipient. This includes making a disclosure to an employer.

The worker must reasonably believe that some form of offence, wrongdoing or breach of a legal obligation is being, has been, or is likely to be committed and that the disclosure is made in the public interest.

The 'public interest' test was inserted into the whistleblowing legislation following the determination by case law that workers could whistle-blow as a result of an employer's breach of the terms and conditions of employment, even if there was no wider 'public interest' in the disclosure. We have looked at how the courts and tribunals have considered what could be in the 'public interest' in a past article.

Case law has determined that workers will not be protected if the disclosure they rely on is found to be wholly in their own self-interest. However, to what extent is the disclosure made in the public interest if it is also made in the self-interest of the worker?

Case details: Okwu v Rise Community Action

Ms Okwu was employed by RCA to support domestic violence and female genital mutilation victims. Her probation period was extended following a review which revealed some performance concerns. Ms Okwu then wrote a letter to RCA complaining about some of her terms and conditions of work, including that she had to share a mobile phone with colleagues to deal with clients and that there was a lack of secure file storage. She stated that due to the sensitive nature of her work the latter two points were in breach of the Data Protection Act 1998.

RCA dismissed Ms Okwu, citing poor performance which RCA said was compounded by her letter, which it said demonstrated Ms Okwu's 'contempt for the charity'.

Ms Okwu brought an automatically unfair dismissal claim arguing that she had been dismissed because she had made a protected disclosure. At first instance, the employment tribunal dismissed the claim on the basis that her letter was not a qualifying disclosure because it concerned 'personal contractual matters' relating 'to her and nobody else' which she had raised in defence of her alleged poor performance. As a result, the tribunal held that Ms Okwu's letter did not meet the public interest test requirement.

EAT's decision

The EAT held that the tribunal had misapplied the public interest test in regard to the issues raised about the shared mobile phone and file storage. Even if these issues were raised in defence of Ms Okwu's performance, it did not mean she could not reasonably believe them to be in the public interest.

The EAT referred to prior case law which had established that public interest need not be the only motivation in making the disclosure, and the EAT felt it was hard to see how the matters raised by Ms Okwu would not, in her reasonable belief, be in the public interest. The question was remitted to a tribunal for consideration.

Comment

This case is a useful reminder to employers that tribunals and courts will consider the public interest element of disclosures made as part of a wider act of self-interest. On the face of it, this makes sense as otherwise a worker would have to act entirely selflessly to be afforded protection by the whistleblowing provisions. Although the judgment of the EAT is not definitive on the quantitative or qualitative requirements, it seems to reinforce the view that there need only be limited public interest in a disclosure for whistleblowing protection to apply.

Employers should bear in mind that the presence of self-interest in apparently tactical disclosures in response to any disciplinary procedure or capability allegations will not necessarily mean a disclosure is not protected as whistleblowing.  

This case does not suggest that an employer cannot proceed with disciplinary action, or dismissal, following a protected disclosure. However, care must be taken to manage the disclosure correctly and to avoid that disclosure being seen to be part of the reason for that action or dismissal. 

 If you would like to discuss any aspect of this article further, please contact Michael Crowther or any other member of the Employment team on 0113 244 6100.