Rise Community Action, a small charity, employed Ms Okwu as a domestic violence and female genital mutilation specialist worker. After three months’ employment, Rise extended her probationary period due to performance concerns. Shortly afterwards, Ms Okwu raised a number of matters in writing including her concern that due to her working with sensitive and confidential information, the absence of a mobile telephone and a secure storage facility, Rise were in breach of the Data Protection Act. Ms Okwu was then dismissed for reasons including unsatisfactory performance and unacceptable conduct, including her attitude in raising these matters. She brought a claim in the employment tribunal for automatic unfair dismissal asserting that the concerns she had raised amounted to a protected disclosure under section 43B Employment Rights Act 1996 – she was seeking whistleblower protection.
One of the factors for a disclosure to attract this protection is that the employee must have a reasonable belief that the disclosure is in the public interest.
The employment tribunal rejected the claim finding that the matters Ms Okwu had raised were not in the public interest and were insufficiently detailed to amount to a qualifying disclosure.
Ms Okwu appealed to the Employment Appeal Tribunal (EAT) which observed that while she may have primarily raised her concerns in the context of her own performance, this does not necessarily mean that she did not reasonably believe that her disclosures were in the public interest. Indeed, given the nature of the complaints raised and the work she did, the EAT struggled to understand how an alternative conclusion could be reached.
This decision highlights the importance of considering the wider impact of any concerns raised by an employee which may, on the face of it, only appear to address issues specific to that employee’s employment, because they may also be capable of being in the public interest and could be disclosures affording the employee whistlebower protection. If that is so, then the reasons for any dismissal or detrimental treatment need – as always – to be carefully recorded in order to be able to establish, if called upon to do so, that any alleged whistleblowing had nothing to do with dismissal.
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