The role of public interest in a protected disclosure claim
In the case of Okwu v Rise Community Action the Employment Appeal Tribunal (EAT) were tasked with deciding whether an employee complaint qualified as a protected disclosure, therefore potentially rendering her employer’s decision to dismiss automatically unfair as a result.
The employee in question began working for the employer, a small charity that provided support to vulnerable women, who saw fit to extend her probationary period due to concerns over performance. Not long after this, the claimant submitted a letter of complaint that outlined her belief that the organisation was acting in breach of the Data Protection Act 1998 (DPA). She specifically referred to their failure to provide her with a work mobile phone and secure storage at work when she was dealing with sensitive and confidential personal information relating to service users.
In response the claimant was dismissed, with the organisation claiming it was satisfied that she was not prepared to take reasonable instructions in respect of the previously identified performance issues. However, in the letter of termination, the organisation also stated that their decision was ‘compounded’ by her recent comments regarding data protection, saying it demonstrated her ‘contempt’ for the charity.
The claimant proceeded to bring a claim to the employment tribunal (ET) for automatic unfair dismissal on the grounds of making a protected disclosure. However, the ET dismissed this claim, as aside from lacking clarity, the employee was found not to have made any protected disclosures, as the matters the claimant raised were not in the public interest as they concerned her own contractual provision. This included the potential breaches of the DPA as they were relevant to her performance issues, and the ET accepted that the organisation had provided clear evidence that showed it had genuine concerns about her performance.
Undeterred by this, the claimant proceeded to appeal the decision with the EAT, believing the ET had erred in its approach to the question of whether her disclosures amounted to a protected disclosure. The employee argued that the organisation had failed to provide a clear reason for her dismissal as they had already noted their issues with her performance and had previously extended her probationary period. Crucially, the only change between this and the time leading up to her dismissal had been her disclosures.
The EAT upheld her appeal and in coming to the decision applied the precedent set by Chesterton Global Limited v Nurmohamed. This case outlined that where a disclosure could have been made in the personal interests of the employee, it will be up to tribunals to determine, as a matter of fact, whether there was sufficient public interest for it to qualify as a protected disclosure.
In doing so the EAT found that the ET had failed to properly consider whether the claimant had a reasonable belief that her disclosure was in the public interest. Given the sensitive nature of the information, the EAT stated that it was hard to believe that it could not be. The EAT went on to explain that the ET had also failed to demonstrate why the original disclosures lacked specific details to be considered protected, as the employee had clearly demonstrated the exact nature of her concerns according to them.
The case has been remitted back to the tribunal to consider whether the disclosure was in fact the reason for dismissal. However, it is a good reminder that employers must be extremely cautious when basing dismissal decisions on disclosures of any kind, as they could face claims for unfair dismissal if these disclosures are later judged to be protected.