Whistleblowing: Is an employee protected as a whistleblower if the disclosure is made partly out of self-interest?

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Whistleblowing: Is an employee protected as a whistleblower if the disclosure is made partly out of self-interest?

Published 7 October 2019

An employee who makes a disclosure partly out of self-interest may be protected as a whistleblower if the employee also reasonably believes the disclosure to be made in the public interest.

THE FACTS

Miss Okwu was employed by Rise Community Action, a small charity providing support for individuals affected by domestic violence, female genital mutilation and HIV. Having raised a number of issues about Miss Okwu’s employment, Rise extended her three month probationary period for a further three months. A few days later, Ms Okwu wrote to Rise complaining about the lack of pension, of a written statement of terms and of internet access. She also complained that Rise was in breach of data protection legislation because she had to use a shared mobile phone for dealing with clients and there was a lack of secure file storage when she was dealing with sensitive and confidential personal information.

Rise decided to dismiss Miss Okwu. It told her that the reason for her dismissal was her poor performance, unsatisfactory conduct, and a failure to communicate. It said that the decision was “compounded” by the letter of complaint which, it said, demonstrated her contempt for the charity.

Miss Okwu claimed that she had been unfairly dismissed for whistleblowing. The employment tribunal dismissed her claim. It found that the matters she raised were not in the public interest but concerned her own contractual position: even matters relating to alleged breaches of data protection legislation were, it found, raised as relevant to her performance issues. The tribunal also found that the information she had provided lacked sufficient detail to amount to a qualifying disclosure. In any event, the tribunal found that Ms Okwu had not been dismissed for matters relating to her personal contractual issues and it accepted that Rise had genuine concerns about her performance and that the evidence supported its case.

Miss Okwu appealed to the EAT which upheld two of her three grounds of appeal and remitted the case to the tribunal.

The EAT held that the tribunal had misapplied the public interest test in relation to the shared mobile phone and lack of secure filing concerns. Even if Ms Okwu had raised these issues in defence of her performance, this did not mean that she could not reasonably believe them to be in the public interest. Public interest need not have been her only motivation. The EAT commented that it would be hard to see how the disclosures were not in the public interest. The tribunal had also failed to explain why it considered that the information lacked sufficient detail.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This case follows established case law. Employers should be aware that workers who raise concerns, ostensibly in their own interests, may still be protected as whistleblowers. It can be difficult to show that someone is acting purely in their own self-interest, but if this can be done it would defeat the claim.

Okwu v Rise Community Action [2019] UKEAT/0082/19

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

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