key-positive-outcome-whistleblowing-cases-2019

Clare Gilham was a district judge who raised a number of concerns regarding funding cuts to the justice system, a lack of appropriate and secure court rooms and severe administrative failures. The central issue for the UKSC was whether Judge Gilham should have the whistleblowing protection under the Public Interest Disclosure Act 1998 (PIDA).

The UKSC rejected the suggestion that there was any employment contract, and also held that judges are not crown employees.  However, they should be granted whistleblowing protection in order to give effect to their right not to be discriminated in the enjoyment of their right to freedom of expression under Article 10 and Article 14 of the European Convention of Human Rights.   The Supreme Court held that the definition of worker should be read so as to include judicial office holders.

The decision is a very welcome step forward in extending whistleblowing protection to wider groups of individuals to raise concerns about public interest workplace wrongdoing. The case could pave the way for other office holders such as trustees, foster carers and priests to be protected under PIDA if they successfully bring a test case. Protect is currently campaigning for more individuals to be protected under the law in its new whistleblowing bill which you can read and offer feedback on here:

Ms Jhuti made a number of protected disclosures whilst working for Royal Mail. Her line manager responded by creating a false report claiming that Ms Jhuti was performing poorly in her role. Royal Mail delegated the decision whether Ms Jhuti should be dismissed to a dismissing officer, who innocently relied on the report of the line manager, having no reason to doubt its truthfulness. The question for the UKSC was whether the reason for dismissal was the invented reason given to Ms Jhuti – and acted upon by the dismissing officer – or the hidden reason of her whistleblowing.

The Court held that in unfair dismissal proceedings, an Employment Tribunal can ‘go behind the mind’ of a dismissing officer and hold that the reason for dismissal was the hidden reason of whistleblowing, rather than the invented reason. The improper motives of the line manager can be attributed to the employer for the purposes of the unfair dismissal claim.

The Court acknowledged that the facts of this case were rare as decisions to dismiss in good faith for a reason which a line manager has dishonestly constructed will not be common. Nevertheless, Jhuti is a positive reminder that the courts will make a concerted effort to ascertain all the relevant facts of a case and protect a whistleblower’s right not to be dismissed where they have made disclosures in the public interest.

Mr Bilsbrough worked in a customer support role at BMS. After discovering an alleged data breach, Mr Bilsbrough reported this to his director who offensively dismissed Mr Bilsbrough’ s concerns.

Following this, Mr Bilsbrough began investigating how to make a disclosure to the Information Commissioner vowing to ‘take the company down’ with this information he had of the alleged breach. A colleague reported this to Mr Bilsbrough’ line manager which resulted in a suspension and disciplinary action into gross misconduct. Mr Bilsbrough was summarily dismissed.

The employer argued that the dismissal was not into the research he had undertaken, but for the comments Mr Bilsbrough had made. Whistleblowing law only explicitly refers to employees who have made a disclosure, so the question for the tribunal was whether the law can be extended to those employees who are considering making a protected disclosure.

Mr Bilsbrough’ s automatic unfair dismissal claim was not upheld on the grounds that his dismissal was not in response to the research he had undertaken into making a disclosure. However, the Tribunal instead upheld Mr Bilsbrough’ s detriment claim by invoking his right to freedom of expression under Article 10 of the European Convention on Human Rights.   The Tribunal held that, where an employer took action because they believed an employee had been considering making a protected disclosure, this too could be protected, otherwise it would be an interference of Article 10 rights.

Whilst not currently a binding decision, this expands the protection covered by PIDA in broadening the scope to include employees who have not yet made a disclosure, but are  considering whether they do so.

This provides an added deterrent to employers from subjecting employees to detrimental treatment, strengthening whistleblower’s rights under PIDA.

Mr Ter-Berg is a dentist who entered into a contract with Simply Smile Manor House dental practice to practice at their premises – this was not a contract of employment. During this time, Mr Ter-Berg made protected disclosures about the directors’ fitness to practice and treatment of patients, first internally, then subsequently to external bodies resulting in the termination of his contract.

Mr Ter-Berg brought a claim of unfair dismissal and made an application for interim relief. Interim relief was initially granted by the tribunal; however, Dr Hancock (a respondent) appealed this decision by calling for the postponement of Mr Ter-Berg’s interim relief application on the grounds that he is not an ‘worker’ covered by whistleblowing protection.  The respondent argued a Preliminary Hearing into his employment status should be considered before the interim relief could be granted. The question for the tribunal was whether the ‘likely to succeed’ test for interim relief only applies to the reasons for dismissal, or whether the claim is ‘likely to succeed’ in its entirety, including Mr Ter-Berg’s employment status.

The Employment Appeal Tribunal held that Mr Ter-berg’s employment status did not need to be established separately. Rather, all elements of an unfair dismissal claim (including employment status) is to be determined in an application of interim relief. The tribunal held that Mr Ter-Berg had a ‘pretty good chance’ of success in proving that he was a worker under the law and that he was dismissed for making protected disclosures, which was enough to be granted the remedy.

The tribunal in this decision has reaffirmed the purpose of interim relief which is to provide a quick and effective remedy for claimants pending a full hearing into their claim.

Mr Ibrahim was an interpreter in a hospital. He became aware of rumours amongst patients and their families that he was responsible for breaches of patient confidentiality. Mr Ibrahim asked his senior manager to investigate this, and it was then referred to the HR manager who investigated and rejected Mr Ibrahim’s complaint. Mr Ibrahim was later dismissed.

The EAT held that Mr Ibrahim’s complaints were a disclosure tending to show a breach of a legal obligation. The category of legal obligation is broad enough to cover tortious acts, such as defamation, and breach of statutory duty, as contained in Defamation Act 2013.

The decision for the Court of Appeal, therefore, was whether Mr Ibrahim’s complaints were in the public interest.

The Court of Appeal allowed the appeal. The Tribunal had not considered the decision of Chesterton Global v Nurmohamed which decided that the claimant must have subjectively belief that the disclosure was in the public interest and this belief must be reasonable. The Tribunal in this case had only focused on Mr Ibrahim’s motive, i.e. to ‘clear his name’, rather than his subjective belief.

The case was sent back to the same Tribunal to consider this.

The decision is a welcome reminder that, whilst a worker must have a genuine and reasonable belief that the disclosure is in the public interest, that does not have to be the predominant motive for making it. It is possible for a disclosure to be motivated by personal self-interest and still also be made in the public interest.

Protect looks forward to see how the Tribunal will apply the Chesterton four-stage public interest test in this case.

Miss Okwu was a domestic violence and female genital mutilation specialist worker at a small charity which worked with individuals impacted by domestic violence, FGM or HIV. After raising a number of issues about Miss Okwu’s performance, the charity extended her probation period by three months. Miss Okwu then wrote to the charity to raise a number of concerns about the charity being in breach of Data Protection legislation by failing to provide her with her own mobile phone with secure storage when she was dealing with sensitive and confidential personal information.

Miss Okwu’s employment was terminated on performance grounds.

The Employment Appeal Tribunal held that the tribunal had misapplied the public interest test in relation to the shared mobile phone and file storage issues. Even if Miss Okwu had raised those matters in defence of her performance, this did not mean that she did not reasonably believe it to be in the public interest. Public interest need not be Miss Okwu’s only reason for raising her concern and the tribunal held that it is hard to see how these matters would not be in the public interest in Miss Okwu’s reasonable belief.

The EAT also remitted the question of the reason for Miss Okwu’s dismissal. The tribunal had failed to consider the actual reason for dismissal beyond noting that there was evidence of performance issues.

The decision affirms that public interest need not be the only motivate for an individual to raise a concern. It is up for the tribunal to determine whether a worker subjectively believed at the time that the disclosure was in the public interest, and then to determine whether this belief was objectively reasonable. This is a positive decision as it ensures that motivation is not a barrier to whistleblowing protection when public interest can be identified.