The Employment Rights Act 1996 provides protection to workers who have made a protected disclosure . A dismissal will be automatically unfair if the reason, or principle reason, for the dismissal is that the individual has made a protected disclosure. In addition, workers are protected from being subjected to a detriment on the grounds that they have made such a disclosure. We review a recent tribunal case which considered whether an employee who was researching how to blow the whistle (but had not yet done so) may be covered under these provisions.
In Bilsbrough v Berry Marketing Services Ltd Mr Bilsbrough, a Client Service Executive was asked to create a user account within a database containing sensitive personal and financial information. He was not told that the purpose of the user account was to test potential weaknesses within the system. The claimant discovered it was possible for the user to view personal and financial information. The claimant was not aware that the administrator rights first had to be approved before the data could be viewed.
Details of the Case
On discovering the issues Mr Bilsbrough reported the matter to a director, by-passing his manager who was not on site at the time. The tribunal found his actions to be in line with the Company’s whistleblowing policy, however noted that Mr Bilsbrough’s line manager was irritated that he had gone straight to a director and subsequently admonished him, telling him to ‘engage [his] brain next time’. Angry at what had been said to him, the claimant went on to tell a colleague he would ‘take the company down’ using the information he had. When his line manager became aware of this comment, Mr Bilsbrough was suspended and he was called to an investigation meeting into claims that he said he would ‘take the company down’ in relation to the alleged data breach. The tribunal found the research into reporting the company for data protection violations materially influenced the decision to suspend. The claimant was ultimately dismissed. The tribunal accepted the disciplining officer’s evidence that his concern was in relation to ongoing security implications in that if the claimant became angry in the future he may seek to ‘take the company down’ not by making protected disclosures, but in another way. The claim for automatically unfair dismissal was not upheld.
Considering whether the claimant had been subjected to a detriment on the ground of making a protected disclosure, the tribunal commented that if an employee does not know how to make a disclosure to a regulator they will need to research this. They went on to say that if that research is discovered before the disclosure is made and the employee can be legitimately dismissed or subjected to a detriment, then the ability to make a protected disclosure is greatly diminished. The tribunal found the suspension in this case was largely due to the fact the respondent believed the claimant had been researching ways to make a protected disclosure and was therefore a detriment, along with the fact the claimant was admonished by his line manager for reporting the issue to a director. The claimant was awarded £2,500 for injury to feelings.
Guidance for Business Owners
- This first level decision is not binding on other tribunals.
- The case indicates that companies should exercise caution when dealing with employees who are considering making a protected disclosure.
- This applies to staff of any length of service, not just those who have gained two years’ continuous employment.
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