Whistleblowing: disclosures made in defence of poor performance could still be in the public interest

An employment tribunal had applied the public interest test incorrectly when ruling an employee who disclosed information about data protection breaches had not made disclosures in the public interest. The tribunal appeared to consider she had disclosed the information in defence of her own poor performance. However, this did not mean she could not reasonably believe the disclosures to be in the public interest.   

Charity worker alleges data protection breaches 

Ms Okwu was employed by a small charity to provide support to victims of domestic violence. Her employment was subject to a three month probationary period. As a result of concerns about her performance, the charity extended her probationary period for a further three months. A week later, Ms Okwu wrote making a number of complaints. She complained about the charity's failure to auto-enrol her into a pension and to provide her with a written statement of terms. She also complained about lack of internet access and about having to use a shared mobile phone when dealing with clients with sensitive personal issues. She said this breached the Data Protection Act. She also raised concerns about other data protection breaches, including having to store a service user’s personal file containing sensitive personal information in an unlocked drawer.  

The charity dismissed her for poor performance, which was compounded by her letter which it said demonstrated her contempt for the charity. 

Tribunal rules disclosures not in public interest  

Ms Okwu claimed her employer had dismissed her on whistleblowing grounds and brought an employment tribunal claim. The employment tribunal ruled that she did not have whistleblower protection.  In order to be protected, she had to reasonably believe the disclosures tended to show a breach of a legal obligation and were made in the public interest. The tribunal considered the public interest test was not met. The disclosures concerned personal contractual matters which related to Ms Okwu and nobody else. 

Ms Okwu appealed to the Employment Appeal Tribunal, arguing the disclosures she had made about breaches of the Data Protection Act dealt with sensitive information relating to service users, not her own personal contractual position. They therefore met the public interest test. 

Employment Appeal Tribunal rules tribunal applied public interest test incorrectly 

The Employment Appeal Tribunal upheld her appeal. The employment tribunal had considered that she was primarily raising her concerns in defence of her own performance. However, that did not mean that she did not reasonably believe her disclosures to be in the public interest. The Court of Appeal in Chesterton Global v Nurmohamed made it clear that the public interest does not have to be an employee’s only motivation when making a disclosure. It was hard to see how the matters Ms Okwu had raised about sharing phones and storing sensitive personal information in an unlocked drawer would not, in her reasonable belief, be in the public interest.      

The Employment Appeal Tribunal sent the case back to the tribunal to consider the public interest test again.  

Implications 

The public interest test was introduced to prevent whistleblowing claims where the information the employee discloses concerns a breach of their own employment contract. However, the Court of Appeal in the Chesterton case ruled that a disclosure concerning a breach of a worker’s own employment contract (or some other purely personal interest) can still be in the public interest. This could, for example, be due to the nature of the wrongdoing disclosed. Here, as the Employment Appeal Tribunal said, it is hard to see how an employee who disclosed information about data protection breaches involving vulnerable service users’ sensitive personal information would not reasonably believe the disclosures to be in the public interest. The fact that the tribunal might have concluded that the employee raised the matters in defence of her own performance (or for some other personal reason) did not change this.  

Okwu v Rise Community Action