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Do you have to ‘blow the whistle’ to be a whistleblower?

September 4, 2019
Employment Law

Normally, in order to enjoy legal protection, a ‘whistleblower’ needs to be able to show that he has made an appropriate ‘protected disclosure’; this is a disclosure to his employer (or another appropriate body), containing information suggesting that a crime has been (or is likely to be) committed or some other law has been (or is likely to be) broken. So can a ‘whistleblower’ be protected if he has only got as far as preparing to make a disclosure?

Bilsbrough v Berry Marketing Services

In a recent case heard by Southampton Employment Tribunal, Mr Bilsbrough argued that he had been detrimentally treated and unfairly dismissed after identifying a potential data security breach within the business in which he worked. Having initially discussed the matter with a director, he then proceeded to research how he might raise his concerns with the Information Commissioner’s Office (ICO). Normally, an employee is required to raise his concerns with his employer, if he wishes to enjoy the protection provided by whistleblowing legislation. However, the ICO is one of limited number of other organisations with which whistleblowers can raise their concerns, whilst still enjoying whistleblower protection.

When his employers found out that Mr Bilsbrough had been ‘googling’ how to go about making a ‘protected disclosure’ to the ICO, he was suspended from work and subsequently dismissed.

What did the ET decide?

Having heard all the evidence, the ET concluded that Mr Bilsbrough’s dismissal was unrelated to any alleged ‘protected disclosure’. Instead, it was a consequence of a threat he had made to “take the company down”. The Employment Tribunal found this remark to be quite separate from any concerns he wished to raise in relation to the alleged data breach.  However, when it came to the issue of his suspension, this appeared to be a direct result of the company discovering his apparent intention to make a ‘protected disclosure’ to the ICO. So was an intention to make a ‘protected disclosure’ still protected?  The law, as it is currently written, would suggest not. However the Employment Tribunal ruled as follows:

“It seems to us that if an employee is behaving responsibly in preparing to make a disclosure…and he or she cannot make that disclosure without researching how to go about it…then the dismissal of such a person or subjecting them to a detriment because of that research would be an interference with that employee’s right to freedom of expression, where the right…clearly includes the right to make a protected disclosure.”

As a result of the human right to freedom of expression, the ET was prepared to read into the current legislation an extension to the protection afforded to whistleblowers. In effect, the law now potentially protects employees as soon as they propose to make a ‘protected disclosure’, albeit they have not yet done so.

Closing a loophole?

Mr Bilsbrough’s solicitor believes this case closes a dangerous loophole that otherwise existed in our whistleblowing legislation. This may be true. However, because Mr Bilsbrough’s unfair dismissal claim failed, and only the detriment claim succeeded, he was ultimately awarded only £2,500 as compensation for injury to feelings. In the grand scheme of things, one wonders whether Mr Bilsbrough feels vindicated in pursuing this legal action or not.

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