When is a disclosure not a disclosure?

In Bolton School v Evans, the Court of Appeal handed down an important decision dealing with the extent of what does (and does not) amount to a 'disclosure' under the Public Interest Disclosure Act 1998.

Michael Evans was an IT teacher at Bolton School. He resigned and claimed constructive dismissal, following the imposition of a formal warning from the School after he disabled some of the service accounts on the Respondent’s computer network from a pupil’s PC in order to demonstrate flaws in the network’s security, having obtained permission to do so in advance.

He claimed he had suffered a detriment as a result of disclosing the Respondent’s breach of its data protection obligations. The Respondent claimed that the Appellant was disciplined for his misconduct in ‘hacking’ into the computer system, and not for any act of disclosure.

Buxton LJ, giving the judgment of the Court, held that in section 43B of the ERA, the word ‘disclosure’ should be given its common meaning, which limits disclosures to the utterance of the words to the employer about the breach of their obligation, and does not extend to any of the surrounding circumstances. The Court rejected the Appellant's arguments that it is necessary to view the circumstances surrounding the utterance as part of an "entire disclosure transaction".

The Appellant is seeking permission to appeal to the House of Lords, which has not yet dealt with a whistleblowing case.

Bolton School v Evans