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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bolton School v Evans [2006] UKEAT 0648_05_0702 (7 February 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0648_05_0702.html Cite as: [2006] UKEAT 0648_05_0702, [2006] IRLR 500, [2006] UKEAT 648_5_702 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE ELIAS
SIR WILLIAM MORRIS KBE OJ
MR S YEBOAH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR KAUSHIK CHAUDHURI (Consultant) Instructed by: Lloyds Employment Law Consultancy Ltd Lloyds House 2 West Street Bourne Lincs PE10 9NE |
For the Respondent | MR MALCOLM GLAZIER (Consultant) Instructed by: Employment Law Advisory Service Lancaster House Old Wellington Road Eccles Manchester M30 9QG |
SUMMARY
Public Interest Disclosure
Protected Disclosure. Employer deliberately broke into computer system to show that his concerns that information might be obtained in breach of the Data Protection Act was reasonable. Disciplined for that reason and resigned in protest and being disciplined. Was it a protected disclosure? Was there a constructive dismissal? If so, was automatically or unfair or in any event unfair under general unfair dismissal principles?
THE HONOURABLE MR JUSTICE ELIAS
"When the two sections are read together, the proper meaning to be given to the phrase "the detriment in question amounts to dismissal" is that it excludes detriment which can be compensated under the unfair dismissal provisions. If the detriment cannot be compensated under the unfair dismissal provisions – for the reason that it is not a loss sustained in consequences of the dismissal – then there is nothing to take it out of section 47(B); and the provisions in section 49, which require compensation for that detriment, should apply"
"Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to personal data."
He thought he had been subjected to a detriment, namely the warning, by reason of making a qualifying disclosure and that this was contrary to section 47(B) of the Employment Rights Act 1996.
The Law
Employment Rights Act 1996 Section 43A:
"43A Meaning of "protected disclosure"
In this Act a "protected disclosure" means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H."
Section 43B:
"43B Disclosures qualifying for protection
(1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following
(a) that a criminal offence has been committed is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within anyone of the preceding paragraphs has been, or is likely to be deliberately concealed…
(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it…
(5) In this Part "the relevant failure", in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1 )."
Section 43C sub-section 1:
"43C Disclosure to employer or other responsible person
(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith
(a) to his employer, or(b) where the worker reasonably believes that the relevant failure relates solely or mainly to(i) the conduct of a person other than his employer, or(ii) any other matter for which a person other than his employer has legal responsibility,
to that other person."
Section 47B:
"(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
(2) ...this section does not apply where
(a) the worker is an employee, and(b) the detriment in question amounts to dismissal (within the meaning of [Part X]).
(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, "worker", "worker's contract", "employment" and "employer" have the extended meaning given by section 43K."
Section 103A:
"103A Protected disclosure
An employee who is dismissed shall be regarded for the purposes of this Part as unfairly
dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."
The Tribunal hearing
The Grounds of Appeal
Was there any qualifying disclosure at all?
Did the Claimant have a reasonable belief?
"has failed or is likely to fail to comply with any legal obligation to which he is subject."
The Tribunal unhesitatingly found that the Claimant did reasonably believe that the School was likely to breach the seventh Data Protection principle. (In fact the requirement is that he must reasonably believe that the information tends to show that, but perhaps nothing turns on that distinction here).
"Indeed the claimant proved this to be the case by the tests which he conducted on the morning of 8 September 2003. It is difficult in the circumstances to see how it could not be something of breaching its obligations under the seventh Data Protection principle."
"The seventh principle
9. Having regard to the state of technological development and the cost of implementing any measures, the measures must ensure a level of security appropriate to-
(a) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage as are mentioned in the seventh principle, and
(b) the nature of the data to be protected."
"We do not read the Judgment as requiring that an Applicant must in all cases show a detailed knowledge of specific legal obligations or to demonstrate that a breach of the obligation is in fact more likely than not. A Court or Tribunal dealing with disclosures under this legislation is of course not required to determine whether an employee is right in saying that a legal obligation will probably be infringed. It is plain that the employee need only have reasonable belief that the information tends to show that although he may in fact be wrong. That is clear from the legislation and also from the Darnton case to which we made reference. It seems to us that a Court or Tribunal must focus on the information provided and ask if it tends to show such a failure. In the light of the information reasonably known and available to the informer does it in fact demonstrate that tendency?"
Was his conduct protected disclosure?
"64. We then turn to the issue of causation. The claimant must demonstrate that he has suffered a detriment on the grounds of a protected disclosure and, in order to succeed with his unfair dismissal case, that the protected disclosure was the reason or the main reason for his dismissal. The respondent argues that he had been dismissed not because he had disclosed matters of public interest but, rather, because he had without authority hacked into the computer system. The Tribunal reminds itself that the statutory scheme introduced b the Public Interest Disclosure Act 1998 is to encourage disclosures to be made internally , that is to say, to the whistleblower's own employer and that this is achieved by making protection readily available so long as the worker raises his or her concern with the employer. Prior to the enactment of the Public Interest Disclosure Act, a Worker who blew the whistle could expect to feel the full force of an organisation's disapproval by way of ostracism, criticism, poor appraisals, victimisation and even dismissal. The Tribunal is therefore acutely conscious of the policy behind the Public Interest Disclosure Act. Parliament, when framing the legislation, required an employer to have a reasonable belief in the matters being disclosed. This requirement was inserted in order to achieve a fair balance between the interests of the worker who suspects malpractice and those of an employer who could be damaged by unfounded allegations. It seems to us that it would emasculate the public policy behind the legislation for us to accept the respondent's submission that the claimant was the subject of disciplinary action not because he had blown the whistle on a suspected failure to comply with the legal obligation but rather because he had hacked into the respondent's computer system without authority. To allow an employer to defeat a Public Interest Disclosure Act case in this way would be to drive a coach and horses through the intention of the legislature that whistleblowers should have employment protection. Doubtless, had the claimant approached Mr Edmundson, Mr Brooker or anyone else for that matter, and simply said that he had a belief that the security system was inadequate, and had he been subject to disciplinary action and brought a similar complaint as he now does, the respondent would have sought to argue that he did not have the basis for a reasonable belief. The respondent cannot have it both ways. In order to obtain sufficient evidence to found a reasonable belief, the Claimant had to do more than simply express misgivings about what had happened over the summer of 2003. It is our view that the legislation must be construed purposively and the investigation undertaken by the employee to found his reasonable belief should not be divorced from the disclosure itself.
65. It is our judgment, therefore, that the claimant has established that the reason that disciplinary action was taken against him was because he made a protected disclosure."
"72. In circumstances where an employer reacts in a hostile, provocative or insensitive manner towards an employee who makes a disclosure, then it is easy to see how this can lead to claims that the employer has breached the fundamental implied term of trust and confidence. The Tribunal has found that the claimant was subject to a detriment on the grounds that he made a protected disclosure. It follows, therefore, that the disciplinary action which the respondent chose to invoke against the claimant was unwarranted. The Tribunal therefore finds that the respondent's actions did amount to a fundamental breach of contract in that its actions destroyed without proper cause mutual trust and confidence."