Protected Disclosures: Is disclosure related penalisation, which occurs before disclosure is made, prohibited?
The Protected Disclosures Act 2014 provides a comprehensive suite of protections to ‘whistleblowers’ who are penalised by their employer or dismissed on account of raising concerns regarding possible wrongdoing in their workplace.
Workers in the UK enjoy similar protections. It is therefore unsurprising that many workplace complaints are now labelled as protected disclosures.
On a literal interpretation of the 2014 Act, the statutory protections for workers come into play only after the protected disclosure has been made. A question therefore arises as to whether an employee is protected against penalisation, where his/her employer discovers that he/she is considering making a protected disclosure? The same question could apply in respect of an employee who contemplates making a protected disclosure but decides, for whatever reason, not to proceed.
These matters were recently considered in the UK in Bilsbrough v Berry Marketing Services Ltd. In this case, an employee was suspended and subsequently dismissed after the employer became aware that he was researching how to make a protected disclosure to a regulator. The UK employment tribunal held that the protection of the law should be extended to an employee who was considering, or perceived as considering, making a protected disclosure.
In the UK, workers are afforded protections if they are penalised by their employer or suffer any detriment because of the act of disclosure. Under section 47A of the UK Employment Rights Act 1996 “a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure”. Section 103 of the 1996 Act provides that “an employee who is dismissed shall be regarded… as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”.
In Ireland, the 2014 Act affords similar protections to workers who have made disclosures. Section 12(1) sates that “an employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.” Penalisation is defined very broadly under the 2014 Act and may include disciplinary sanction, suspension, a change in working hours or demotion amongst other things. Section 11 makes a number of amendments to the Unfair Dismissals Act to address dismissals as a consequence of making a protected disclosure.
Background to the case
In Bilsbrough v Berry Marketing Services Ltd, the company operated a global directory of venues and provided software for clients to search and book venues for conferences and events. The claimant was employed as a Client Service Executive providing front line technical support. During the course of his employment, he noticed a data security breach, whereby persons added to the database were often conferred with rights to access sensitive information about client venues without the client’s permission or awareness. Such sensitive information included lists of attendees, email addresses, user names and financial information such as bank account and sort code details.
In accordance with the company’s Whistleblowing Policy, the claimant reported the breach in October 2017 to his technical director. His line manager was out of office at the time, but the Policy provided that a disclosure should be made to a director if the employee believed their line manager was involved or, as in this case, could not approach their line manager.
The director in question was happy to receive the information and the company immediately initiated steps to rectify the breach. However, the line manager was very disgruntled that she had been by-passed and proceeded to berate the claimant on the telephone, instructing him to “engage [his] brain next time”. The claimant was offended by these comments and vented his frustration to a colleague. He told his colleague that he would “take the company down” with the information he had regarding data protection violations. The claimant then began to research data protection principles and how to make a disclosure to the UK’s Information Commissioner.
The claimant resigned in November 2017 after obtaining an offer of alternative employment but later changed his mind. His line manager accepted the withdrawal of his resignation and arranged for a meeting to discuss the development of his role. The claimant was overheard by colleagues in the canteen speaking about his upcoming meeting with his manager in terms of a promotion and this was perceived as boastful. The colleague got upset that the claimant was being promoted over her and informed the line manager about his comments that he would take down the company by reporting data breaches to the Information Commission.
The claimant was suspended and, following a disciplinary meeting, summarily dismissed for gross misconduct. The claimant brought claims that he was subjected to a detriment in being upbraided by his line manager and suspended, and that his subsequent dismissal was unfair because of the protected disclosure.
Findings of the UK employment tribunal
The claimant argued that in order to give effect to the employee’s rights under Article 10 of the European Convention of Human Rights (freedom of expression), UK legislation should be read in a way that goes beyond the literal wording, and the statutory protections should be extended to an employee who suffers detriment or dismissal on the grounds that an employer perceived or believed that the employee had been considering making a protected disclosure. The argument was essentially that the right to freedom of expression included the right to make a protected disclosure and research is often an integral part of making a disclosure; therefore, in circumstances where an employee cannot make a disclosure without researching how to do so (as in this case), then the dismissal of that employee, or subjecting him/her to detriment because of that research, would be an interference with his/her right to freedom of expression.
The employment tribunal found that effective protection could not be given to whistleblowers in the absence of such an interpretation, stating:
“The Claimant’s counsel advances a powerful argument that without such an interpretation, effective protection in the context of whistleblowing is not given… [I]f employers are permitted lawfully to sanction workers whom they perceive to have considered making or be liable to make a protected public interest disclosure this would have a chilling effect on the making on public interest disclosure.”
The tribunal rejected the unfair dismissal claim as it did not accept that the claimant was dismissed wholly or principally because he had made a protected disclosure or had considered (or researched) making one. The tribunal acknowledged that certain aspects of the investigatory and disciplinary process may have presented difficulties for the company if the case were an ordinary unfair dismissal claim (which it was not because the claimant lacked qualifying service); however, it was satisfied that the decision to dismiss was based on the claimant’s comments made that he would “bring down the company” and the company’s genuine belief that he may sabotage the company in the future.
However, the employment tribunal did uphold the claimant’s claims of detrimental treatment, finding that the claimant was subjected to detriment as a consequence of making a protected disclosure to the technical director. The tribunal also found the claimant’s suspension to be a detriment, and that the decision had been materially contributed to by his research of the process by which a complaint to the Information Commissioner should be made. An award of compensation for injury to feelings was granted in the amount of £2,500.
Advice to employers
This is the first case in the UK or Ireland where an employee who was penalised for having considered making a protected disclosure, successfully argued that he was entitled to the same legal protection as an employee who had actually made a protected disclosure. Although a first-instance judgment, the reasoned decision of the employment tribunal will almost certainly be given consideration in future cases.
Every case turns on its own facts but employers will need to approach with caution the disciplining or dismissal of any employee whom they have reason to believe may be considering making a protected disclosure. In particular, it is noteworthy that where a dismissal results wholly or mainly from the making of a protected disclosure, the maximum compensatory award in Ireland is five years’ remuneration. Further, the 2014 Act permits an employee to bring an unfair dismissal claim irrespective of length of service and the employee can apply to the Circuit Court within 21 days of the dismissal for an injunction seeking the continuation of the contract of employment until the hearing of the unfair dismissal claim. The effect of a successful injunction application would be that the employer is obliged to pay the employee’s salary and benefits until the conclusion of the unfair dismissal claim.