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Whistleblowing on the up

Mr Bilsbrough (B) worked for Berry Marketing Services (BMS). BMS operate a worldwide directory of venues for events and conferences, and booking software. B was asked to add a user to the system, unbeknownst to him it was to test the system. The system allowed the new user rights to view data including bank account details, and B decided to report the issue. He could not report it to his line manager, as she was offsite at the time. He instead reported it to the Director who had responsibility for technical matters. This was in line with BSM’s whistleblowing policy.

B’s line manager was “irritated” that B had by-passed her. She told him to “engage [his] brain next time”. B was angry at the response and told a colleague that he would “take the company down using the information he had”.  He researched how to make a disclosure to the Information Commissioner.

B handed his notice in when he was offered another role, but withdrew it when his line manager offered him a meeting to develop his role and maximise his talents. He was overheard boasting about this development, and his colleague (upset at his promotion) told B’s line manager about his threat to bring the company down and report it for data protection violations. B was suspended. He was invited to a disciplinary meeting, the charge being “you have been researching ways to damage the company’s reputation by reporting an alleged data security breach without following appropriate internal processes”.  B confirmed he had said that he would take the company down, but this had been said in anger. B was dismissed. The Director who dismissed B did so because of the threat to bring the company down, and the fact that this could happen again if B became angry in the future. B appealed, but his appeal was unsuccessful.

B brought claims of unfair dismissal due to a protected disclosure and being subjected to detrimental treatment because he had made a protected disclosure. He relied on an actual disclosure (telling his employer about the potential breach) but also asserted that his employer acted “because of a perception or belief that he had made a protected disclosure or considered making a protected disclosure or might make a protected disclosure in the future”.

B was not successful in his unfair dismissal claim, as the ET found he had been dismissed for his conduct and the threat to bring the company down. However, the ET found that his suspension was “because [B] had been researching ways to make a protected disclosure…”. This was a detriment connected with whistleblowing, and B was awarded £2,500 for injury to feelings. The ET found 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 person or subjecting them to a detriment because of that research would be an interference with that employee’s right to freedom of expression”.

What does this mean for you or your business?

This is only a first instance decision and could be appealed. However, it makes the important point that an employee should not be subjected to a detriment for considering making a protected disclosure. The ET acknowledged a potential loophole in the legislation, finding that if an employee is discovered to be researching how to make a protected disclosure or is disciplined before being able to make their disclosure, this would have a “chilling effect” on the making of disclosures.

What do you need to be doing now?

As an employer, make sure that your employees have access to your whistleblowing policies and procedures and that they have received relevant training. It is often hard to determine what is a genuine protected disclosure and what is a grievance, but as an employer you should take disclosures seriously. Investigate properly and only discipline or sanction if a disclosure has been made maliciously with no evidence.

BPE offer extensive training which includes how to handle whistleblowing claims. If you are interested in discussing this or need help in the development of policies in this area, please get in touch.

 

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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