Whistleblowing - reasonable belief in public interest?

07 November 2019 | Jatinder Tara

Is the employee’s reasonable belief that disclosure is in public interest enough for whistle blowing protection?

Whilst whistle-blowing must fall within public interest and thus must not relate to the employee’s individual concerns over his/her contract of employment but where the employee’s concerns suggest some overlap between personal and public interest then whistle blowing protection could still apply as highlighted by the recent Employment Appeal Tribunal (EAT) decision in the case of Okwu v Rise Community Action 2019.

Data Protection Disclosure 

Rise Community Action (RCA) was an organisation offering support for people affected by domestic violence, HIV or female genital mutilation and Miss Okwu, was employed by RCA as a specialist case worker in domestic violence and female genital mutilation.

During Miss Okwu 3-month probation period issues were identified over her performance and her probation was extended for a further 3 months and during this extension Miss Okwu wrote to RCA expressing concerns that RCA were in breach of the Data Protection Act by failing to provide her with her own secure mobile phone when she was dealing with sensitive and confidential information.

Miss Okwu was later dismissed for performance issues and she brought claims against RCA, alleging that she was automatically unfairly dismissed on the grounds of making a whistle blowing disclosure.

An Employment Tribunal (ET) found that the issues raised by Miss Okwu were not within the public interest and instead concerned her own contractual position and performance concerns. The ET accordingly dismissed Miss Okwu's claim. Miss Okwu appealed to the EAT.

The EAT allowed the appeal in part on grounds that the ET had failed to ask the crucial question i.e. whether Miss Okwu had reasonably believed that her disclosure was within the public interest and case was sent back to the ET for reconsideration.

The EAT have taken a board brush approach to the overlap between personal and public interests relying on earlier cases which suggest there is no defined line on such matters thus a worker’s reasonable belief of a breach being in the public interest will suffice and it does not matter that public interest is not the worker’s  predominant motive for making a disclosure.

The Answer.. 

The moral of this article is that Employers must not dismiss a whistle blowing complaint on the basis that it is not likely to be true or that relates to personal matters of the employee and proceed to treat the complaint seriously by carrying out a full investigation.

If this article raises any issues for you or your organisation, please speak to our Quest HR Advisors on 0333 240 7208 or contact us today. 

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