Hill v Governing Body of Great Tey Primary School
A school assistant in a state primary school was found to be in breach of the school’s confidentiality policy. She was suspended pending an investigation after she informed a parent that her child had been bullied by other children in the playground. In response to her suspension, the claimant alerted the local press. She was summarily dismissed for gross misconduct for breaching confidentiality.
The employment tribunal rejected her claim that she was dismissed for making a disclosure in the public interest (in other words, whistleblowing), but found that the dismissal had been unfair on procedural grounds. At the subsequent remedy hearing, the tribunal found that the award should be reduced by 80% on the basis of contributory fault and in accordance with the principles in Polkey v A E Dayton Services Ltd (formerly Edmund Walker (Holdings) Ltd)  IRLR 503 HL (ie that the claimant would have been dismissed within two months anyway).
The claimant’s three primary arguments during the appeal were that the tribunal:
- had taken the wrong approach to the application of Polkey;
- wrongly applied art.10 of the European Convention on Human Rights in determining whether or not dismissal would have occurred anyway; and
- failed to establish what part of the disclosure breached her confidentiality obligation and to whom the confidentiality was owed.
The claimant argued that the tribunal had incorrectly applied the Polkey decision and had determined whether or not she would have been dismissed in any event by relying on the “range of reasonable responses” test. The tribunal, she argued, had wrongly reviewed the fairness of a hypothetical later decision to dismiss. Instead, it should have predicted the likelihood of the claimant being dismissed if the disciplinary procedure had been carried out fairly.
The Employment Appeal Tribunal (EAT) agreed and found that the tribunal had failed to consider the chances of dismissal and, in doing so, failed to set out “those matters which might be said in favour of the claimant, as well as against – such as her service over seven years”. The tribunal was found to have taken an erroneous approach in determining the level of Polkey reduction that should have been made.
Interpretation and application of art.10
The employment tribunal noted that freedom of expression under art.10 of the European Convention on Human Rights is subject to qualifications. However, the tribunal further reasoned that the right should be exercised “judiciously, responsibly and not recklessly”. The tribunal used this reasoning in determining that the claimant had breached her contractual terms and conditions by making the disclosure and that, by doing so in reckless manner, she would have been fairly dismissed in any event.
The EAT disagreed with this formulation and labelled it “dangerous” for the tribunal to paraphrase the wording of art.10. Instead, the tribunal should have adopted a “structured approach” in establishing the impact that art.10 had on the claim.
The EAT lays down steps that the tribunal should have followed to determine the impact art.10 has in establishing the extent of contributory fault:
- The tribunal should have considered whether or not what had occurred fell within the scope of freedom of expression.
- If the events did, the school is bound to respect that right as a public authority, unless restriction of the right can be justified under art.10(2).
- The tribunal should have identified the aim that the restriction of free speech sought to serve – for example, in the interests of national security.
- Thereafter, it is the duty of the tribunal to determine whether or not the restriction or limitation of the right is prescribed by law. Such legal prescription includes contract terms requiring respect for confidential communications.
- Finally, it is necessary, if the above steps are satisfied, to determine whether or not the restriction to art.10 is “necessary in a democratic society” – in other words, whether or not it is appropriate to the legitimate aim and that the extent of interference is proportionate to the importance of the particular aim.
While the claimant’s appeal on this point was successful, the EAT rejected the claimant’s argument that schools have no right to protection of reputation. The claimant relied on Derbyshire County Council v Times Newspapers  AC 534 CA, where it was established that a local authority did not have the right to claim damages for defamation. However, the EAT refused to apply Derbyshire to the present case on the basis that a local authority is democratically elected and therefore “it should be open to uninhibited public criticism”. This does not apply to state schools as, although they are public authorities, they are not governmental bodies. It is important that the school’s reputation can be protected for the purpose of attracting staff, children and funding.
The claimant argued that to determine her blameworthiness, the tribunal was under a duty to identify precisely what part of the information disclosed was confidential, as well to whom the duty of confidentiality was owed.
The EAT found that the tribunal had failed to determine the extent of the claimant’s breach of confidentiality. This, combined with the conclusion that the tribunal did not adopt the structured approach to art.10, meant that the tribunal may have placed more weight on factors suggesting that the claimant had been more blameworthy than it would have done if it had carefully balanced her right to free speech against her obligations to keep matters confidential.
The findings above led the EAT to conclude that the tribunal’s findings that the claimant would have been dismissed after two months in any event and her compensation should have been subject to an 80% reduction should be revisited.
The EAT remitted the remedy decision back to an employment tribunal to review the award due to the claimant.
Kate Hodgkiss, partner, DLA Piper
Practical guidance frm XpertHR on whistleblowing
Line manager briefing on whistleblowing This line manager briefing looks at the law and best practice on whistleblowing.
Whistleblowing policy Use this model policy to provide a route for any worker to raise qualifying disclosures under the Public Interest Disclosure Act 1998.
Good practice: Whistleblowing This section of the XpertHR good practice manual explains the benefits of having effective whistleblowing arrangements and guides employers on how to introduce and manage a whistleblowing policy and procedure, encourage employees to raise concerns and ensure that concerns are dealt with appropriately.