Whistleblowing and reasonable belief in public interest
The Employment Appeal Tribunal (EAT) has held in Okwu v Rise Community Action that it is sufficient that an employee has a reasonable belief that a protected disclosure is in the public interest even if it is not.
The claimant was employed by Rise, a small charity providing support for individuals affected by domestic violence, female genital mutilation or HIV, as a domestic violence and female genital mutilation specialist worker. It extended her probation period by three months having raised a number of issues regarding her performance.
The claimant, having received her extension of probation letter, wrote to Rise raising concerns that, amongst other things, it was acting in breach of data protection legislation by failing to provide her with her own mobile phone and with secure storage when she was dealing with service users' sensitive and confidential personal information. Her employment was then terminated on performance grounds and she brought a claim for unfair dismissal.
An employment tribunal held that the matters raised by the claimant concerned her own contractual position and were not in the public interest. On appeal, the EAT considered that the tribunal had failed to ask whether the claimant had a reasonable belief that her disclosure was in the public interest. It found that the matters raised by the claimant were clearly particularised, with sufficient specificity to be capable of tending to show a breach of an obligation of the Data Protection Act (DPA). The EAT also found that, considering the nature of the interest in question, it was hard to see how it would not, in the claimant's reasonable belief, be a disclosure made in the public interest. It remitted the case to the tribunal for reconsideration.
Take note: The decision in Okwu makes it clear that the public interest need not be an individual's only motivation for making a disclosure (here the tribunal considered that the matters raised by the claimant concerned her own contractual position). It is up to 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 that belief was objectively reasonable. Here, the EAT held that the nature of the interest, namely the sensitive nature of the information provided by service users and the fact that this information was readily accessible in breach of the DPA, meant that the disclosure was almost certainly in the public interest.