Tribunal case bolsters protection for potential whistleblowers

An employment tribunal last month concluded a case that could prove highly significant for potential whistleblowers.

The claimant, James Bilsbrough, brought the case after being dismissed by his employer, which had discovered he was researching how to blow the whistle on what he thought was a serious data breach at the firm.

Mr Bilsbrough in October 2017 came across an alleged data security breach at his employer, Bournemouth-based Berry Marketing Services, and reported it to a technical director, Tim Clark, rather than his line manager who was not on the premises at the time. Mr Bilsbrough had worked at the firm since late 2016.

The firm’s whistleblowing policy stated that issues should be raised with line managers unless the worker believed the line manager to be involved in wrongdoing or they could not approach their line manager for any other reason. In such instances a director should be informed.

Clark appeared to be pleased that Mr Bilsbrough had brought the issue to him, the Southampton employment tribunal heard. But when the line manager, Ms Swatkins, was informed of Mr Bilsbrough’s concerns she was allegedly irritated by the fact that he had not contacted her first and admonished the claimant, telling him to “engage his brain next time”.

The tribunal found it was reasonable that Mr Bilsbrough was offended by Ms Swatkins’ comment. He later angrily told a colleague, Ms Dobbs, that he would “take the company down” with the information he had, and started to research using Google, data protection principles and how to make a disclosure to the information commissioner.

Meanwhile, the company had taken the issues revealed by the claimant to Clark seriously
and embarked upon a series of fixes in relation to the software.

Mr Bilsbrough meanwhile found another job and handed in his notice. He later changed his mind and withdrew his resignation, which was accepted by Ms Swatkins, who arranged a meeting with him to develop his role within the company.

But Ms Swatkins later heard that Mr Bilsbrough had told Ms Dobbs he would “bring the company down” and suspended him. A letter sent to the claimant linked his suspension to the fact he had researched ways of making a protected disclosure. The tribunal report stated: “We find that the employer, at this stage, was more motivated by what the claimant had intended to do in the past rather than what he might do in the future.”

It also noted that Ms Swatkins was “vexed” that the claimant was considering reporting the issues to the Information Commissioner and not her.

After a disciplinary meeting on 19 December 2017, Mr Bilsbrough explained he had made his comments about bringing the company down in anger. However, Mr Clark took the decision to dismiss him despite his being a valued employee.

Employment judge Dawson agreed with the claimant’s claim of being “subjected to a detriment on the ground of making a protected disclosure”. Mr Bilsbrough had reasonably believed that the disclosure tended to show that Berry Marketing had failed to comply with its legal obligations under the Data Protection Act 1998.

The judge agreed with the claimant’s counsel that without such an interpretation, effective protection in the context of whistleblowing could not be given. Mr McFarlane for the respondent argued that case law limited protection only to those who had made disclosures. But the tribunal sided with the claimant, agreeing that an employee would have to conduct research on how to make a disclosure if they were to make one.

But the claim of unfair dismissal was not well-founded; the tribunal ruled Mr Bilsbrough was not dismissed because of his research but because he had threatened to damage or destroy the company when he became angry with Ms Swatkins.

Mr Bilsbrough was awarded the sum of £2,500 in respect of injury to feelings.

Employment solicitor at Slater and Gordon David Woodward, who represented Mr Bilsbrough told Personnel Today: “Previously you could get fired if your employer got wind you were considering making a protected disclosure and you would not be protected by whistleblowing laws. You had to actually make a protected disclosure. But we argued successfully that if an individual was simply researching how to make a disclosure that individual should also have whistleblowing protection.”

He emphasised that the ruling was not strictly speaking a precedent: “Technically it’s not binding on other tribunals, but I don’t think people have successfully raised these arguments before and people advising companies need to know about this case … companies will need to be very cautious when dealing with employees who are considering making a protected disclosure. Before this case if they didn’t have two years’ continuous employment and they were considering making a protected disclosure they could just be dismissed.”

Woodward added: “Now someone going through the necessary steps of researching how and who to make a protected disclosure to, even if they decide not to make a protected disclosure, can argue that they have the same legal protections as an actual whistleblower. This extension of protection will hopefully mean many more people feel able to highlight wrongdoing in the workplace without fear of sanction from an employer.”

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