In Okwu v Rise Community Action the EAT considered whether an employment tribunal had wrongly concluded that a letter concerning personal contractual matters did not have sufficient public interest to meet the test for being a qualifying disclosure.
Ms Okwu had worked for Rise Community Action for about 3 months when her probationary period was extended following concerns regarding her performance. Shortly thereafter she wrote to Rise raising a number of matters. These included concerns that they were breaching the Data Protection Act (DPA) by failing to provide her with her own mobile phone and secure storage (instead she was made to share a phone with others) when she was dealing with sensitive and confidential personal information of clients. Following a receipt of this letter and the making of allegations in respect of contractual documents which Ms Okwu said were not provided, Rise terminated her employment.
Not having the necessary service to make an ordinary unfair dismissal claim, Ms Okwu made a claim for automatically unfair dismissal arguing her dismissal was in consequence of the protected disclosures she had made. A disclosure that qualifies for protection is one that, in the reasonable belief of the worker making the disclosure, is made in the public interest and which otherwise meets the requirements of section 43 of the Employment Rights Act 1996. The requirement for the disclosure to be in the public interest was considered in Chesterton Global Limited v Nurmohamed in which it was held that there may not be a white line between personal and public interest, and where there were mixed interests it will be for the employment tribunal to rule, as a matter of fact, as to whether there was sufficient public interest to qualify under the legislation.
An employment tribunal found that the matters raised by Ms Okwu concerned her own contractual position - even the matters relating to the potential DPA breach were raised as relevant to her performance issues and were not made in the public interest. Her unfair dismissal claim was dismissed on this and a number of other grounds. Ms Okwu appealed.
When considering the issue of reasonable belief, the EAT, following Chesterton, concluded that the fact that the Claimant raised the DPA issue primarily as relevant to her assessment of her performance did not necessarily mean that she did not reasonably believe that her disclosure was in the public interest. The EAT concluded that, considering the nature of the interest in question, it would be hard to see how it would not, in Ms Okwu's reasonable belief, be a disclosure made in the public interest. It was also highlighted that public interest need not be the only motivation for making a disclosure. The matter was remitted back to the employment tribunal to reconsider.
This case highlights the need for employers to carefully consider whether information provided by an employee could amount to a protected disclosure even when it is made in the context of what appears to be the personal interest of the employee. This is, of course, all the more important if a dismissal takes place fairly shortly thereafter. When dismissing an employee in these circumstances employers need to be sure that they have a clear paper trail that evidences that the reason for dismissal is unconnected to a potential protected disclosure.
