Dismissal for Disobeying Instruction not to Contact the Information Commissioner’s Office was Fair

An employee’s dismissal for disobeying an instruction not to contact the Information Commissioner’s Office was fair. He had not made a protected disclosure and his whistleblowing claim failed.

In Barton v Royal Borough of Greenwich, Mr Barton was an elected union shop steward and a health and safety representative. He was told by a colleague that a manager had emailed hundreds of documents containing personal data to her home computer. 

Mr Barton emailed the Information Commissioner’s Office (“ICO”) to seek advice and disclosed the information he had received from his colleague. Later that day he relayed the same information to his employer. The employer investigated the allegation and told him not to contact the ICO again without permission. The investigation revealed that the manager had emailed 11 documents to her personal email account, none of which were confidential or in any way inappropriate. 

Mr Barton contacted the ICO and asked whether his employer could instruct him not to contact them. The ICO told him his employer could not do this and Mr Barton relayed this to his employer. 

Mr Barton was dismissed for misconduct for breaching a reasonable instruction by contacting the ICO. He claimed unfair dismissal, alleging that he had been dismissed for making protected disclosures. He relied on both the email and subsequent telephone call to the ICO as protected disclosures. 

The employment tribunal rejected his claim. The email to the ICO was not a protected disclosure. His belief that the contents of the email were substantially true was not reasonable. He had acted too hastily and should have sought to verify the information before contacting the ICO. He could not rely on the telephone call to the ICO either as it did not disclose information. It simply sought advice. Mr Barton’s dismissal was for misconduct and was fair.

Mr Barton appealed to the Employment Appeal Tribunal (“EAT”). The EAT upheld the employment tribunal’s decision. It also rejected Mr Barton’s argument that the email and phone call could be considered together to see if the conditions for a protected disclosure had been met. 

Although Mr Barton’s dismissal was found to be fair on the particular facts of this case, employers should be wary about instructing employees not to contact external authorities. Employees are clearly entitled to contact external authorities about matters within their remit. Had Mr Barton disclosed information during the telephone call instead of seeking advice he may well have been found to have made a protected disclosure, provided that he also reasonably believed the information disclosed to be substantially true. 

Nevertheless employees should consider making make disclosures internally in the first instance. An advantage of doing so is that the conditions for protection are less onerous for internal disclosures. Had Mr Barton made his initial email disclosure internally, it would not have been necessary for him to have a reasonable belief that its contents were substantially true. The tribunal would therefore have found that he had made a protected disclosure. Any dismissal for making it would have been automatically unfair.