Whistleblowing: Can an employee rely on the provisions of the Employment Rights Act for protection when a disclosure is intended but has not actually been made?
Whistleblowing continues to be a topical subject in the sphere of employment law and beyond. Scarcely a week goes by without a high profile business or public figure being taken to task as a result of a leak or courtesy of an anonymous source. Most recently the case of Bilsbrough v Berry Marketing Services Limited considered the topic.
The statutory provisions which protect workers who make appropriate disclosures of actual or apprehended wrongdoing are relatively concise. What is spelled out particularly clearly in the Employment Rights Act 1996 (ERA) is that only individuals who have made ‘protected’ disclosures can be protected.
However, in this case the employment tribunal has recently sought to extend the boundaries of the ERA in order to shield from detrimental treatment not only employees who have made protected disclosures, but in some cases those who are merely considering or preparing to do so.
Interestingly, article 10 of the European Convention on Human Rights (ECHR) – enshrining the right to freedom of expression – was crucially cited in support of Mr Bilsbrough’s successful argument for taking a more liberal interpretation of the relevant provisions of the ERA.
The facts of the case as they relate to this novel point are straightforward. Berry Marketing Services Limited (BMS) maintains a directory of venues worldwide which can be used for conferences and events. Through the use of software it facilitates the booking of venues by event organisers. In doing so it uses a database to hold details of venues and also individuals who make bookings.
Mr Bilsbrough was employed by BMS in a customer support role. He was asked by a more senior employee to create an account for an individual, but was not told that this was a test to highlight weaknesses in the system. When he did so he identified that the individual would have been able to access sensitive personal and financial information about other individuals, such as their email addresses and banking details.
Mr Bilsbrough reported his findings to a director of BMS, in the process bypassing his line manager who was offsite at the time. When she returned to the business she reprimanded him for going outside of the ‘lines of command’ in her absence, and exhorted him to ‘engage [his] brain next time’.
The claimant took umbrage and vowed to a colleague that he would ‘take the company down’ by reporting the system issues he had discovered. He then went about researching how to report the matter as a formal complaint to the Information Commissioner. Mr Bilsbrough’s colleague reported the conversation to Mr Bilsbrough’s line manager, who suspended him pending disciplinary action.
The tribunal found as a fact that Mr Bilsbrough’s suspension was significantly driven by his researching of the process of making a referral to the Information Commissioner, and his intention to cause damage to the company by doing so. After a subsequent disciplinary hearing, Mr Bilsbrough was dismissed. He appealed unsuccessfully against the decision, following which he brought an unfair dismissal claim and asserted that he had been subjected to detriment as a result of making protected disclosures.
The unfair dismissal claim was unsuccessful, essentially as the tribunal was satisfied that the reason for dismissal was the claimant’s conduct generally and the genuineness of the employer’s belief that the claimant may have tried to sabotage its business in the future for different reasons. But it was in relation to the detriment claim, which succeeded, that the point of interest arose.
Mr Bilsbrough argued that article 10 ECHR required the whistleblowing provisions of the ERA (section 47B in relation to detriment and 103A for dismissal) to be read in a way which went beyond the precise words used, so that protection should be extended to employees who suffered because they were considering making a protected disclosure, or were expected to make a protected disclosure in the future.
The tribunal considered this a ‘powerful argument’, saying that without the law extending that far, whistleblowers would not be adequately protected. It recognised there was a danger that unscrupulous employers could act swiftly to punish workers before they had the chance to make a disclosure, either because they had to research the process to follow, or simply because they wished to take time to consider their course of action – and that it would be unjust for liability to be avoided by doing so.
The judgment reasoned in particular that where an employee was responsibly preparing to make a protected disclosure, and by necessity will need to research how to do so, then to subject him or her to a detriment would be:
an interference with that employee’s right to freedom of expression, where the right to freedom of expression clearly includes the right to make a protected disclosure. In such case the research is an integral part of making the disclosure.
The tribunal considered Mr Bilsbrough’s suspension to be a detriment, and that the decision had been materially contributed to by his research of the process by which a complaint to the Information Commissioner should be made. An award of compensation for injury to his feelings was therefore granted.
It will be interesting to observe the impact of this judgment in coming weeks and months. Being a decision of the first tier tribunal it is not binding on any others, but it should be given cognisance in future cases raising the same point – which realistically will follow after these findings.
It is still open to BMS to appeal the judgment and almost certainly the Employment Appeal Tribunal would grant a hearing on such an important issue of law. However, given that the value of the award made to Mr Bilsbrough in respect of the detriment suffered was a relatively modest £2,500, it may be considered too expensive a matter of principle to pursue in this case. Thus, for the time being the way would seem to have been left clear for individuals who had not made disclosures but were preparing to do so to have their complaints heard.
If you have any queries on whistleblowing, then please contact your usual Brodies contact.
Users of Brodies Workbox may also want to take a look at our dedicated page on whistleblowing, which includes a template whistleblowing policy.
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