Whistleblowing 1

The EAT (Elias P. presiding) has handed down an important whistleblowing decision, clarifying the nature of the necessary causative link between the dismissal/detriment and the protected disclosure.

The Claimant, a technology teacher at Bolton School, made a protected disclosure by telling the school that the computer system was insufficiently secure, and allowed students to hack into confidential information about other pupils (in breach of the Data Protection principles).

When the School did not take his concerns seriously, he hacked into the system himself and disabled some user accounts. Although he immediately told the school what he had done, the IT department shut the system down, causing about £1,000 loss in 'recovery' time. The Claimant was given a written warning and resigned in protest. He claimed detriment (the written warning) and constructive unfair dismissal on the grounds he had made a protected disclosure, leading to the warning/resignation. The employment tribunal allowed his claim.

The EAT quashed the decision. Under statute, the employee must be subjected to a detriment "on the grounds that" he has made a protected disclosure. The protected act is limited to the disclosure itself, and does not extend to any conduct which is designed to demonstrate that the belief is reasonable. The statute protects disclosure but not other conduct by the employee even if connected in some way to that disclosure.

As Elias P. stated, at paragraph 65: "An employee cannot be entitled to break into his employer's filing cabinet in the hope of finding papers which will demonstrate some relevant wrongdoing which he can then disclose to the appropriate person. He is liable to be disciplined for such conduct, and that is so whether he turns up such papers or not. Provided that his misconduct is genuinely the reason for the disciplinary action, the employee will not be protected even if he does in fact discover incriminating papers. Success does not retrospectively provide a cloak of immunity for his actions, although he will then of course be protected with respect to the subsequent disclosure of the information itself."

Bolton School v Evans