The primary issue involved in this case was a detriment that was suffered by the claimant as a result of the research that was conducted with a view to making a protected disclosure to the Information Commissioner's Office.  This arose after the claimant was asked by the Managing Director of the respondent company to add his nephew onto a database for hiring venues.  This was done with a view to determining the risks with the database with it being found that it allowed access to information on venues, such as enquiry values and bank account details.  When the claimant became aware of this he spoke to the Strategic Development Director, who said he would follow up on the data protection issues but failed to do so.

The claimant’s line manager was irked by the decision of the claimant to go to the Director rather than her in first instance.  She had reiterated that there were chains of command that must be followed.   The claimant was subsequently suspended after reports that ‘he would take the company down’ and the Tribunal stated the reason was that the claimant had been researching how to make a protected disclosure. This was the reason for his subsequent dismissal.

The Employment Tribunal found that the right to freedom of expression under Article 10 of the ECHR had been engaged with reference to the research for the protected disclosure.  The pertinent GB law is Sections 47B and 103A of the Employment Rights Act 1996 which states that an employee should not be treated detrimentally or dismissed as a result of a protected disclosure but did not extend to the extent that he may make a protected disclosure.   Through the Public Interest Disclosure (NI) Order 1998, which amends the Employment Rights (NI) Order 1996, the NI legislation is a mirror copy to the GB legislation.  The fact that Article 10 was engaged led the Tribunal to conclude that for the effective protection in the context of whistleblowing it required a wider definition that would include situations where the decision is made on the basis that a protected disclosure may be made in the future. They were persuaded by the claimant's counsel's arguments on the protected disclosure legislation needing to be read in the light of the ECHR:

"She submits that if employers are permitted lawfully to sanction workers whom they perceive to have considered making or be liable to make a protected public interest disclosure this would have a chilling effect on the making of public interest disclosures. She submits that it would also create a perverse incentive for employers to sanction workers in order to deter them from making public interest disclosures before they actually do so... It seems to us that Ms Barrett’s arguments are persuasive."

As a result, the Tribunal found that the dismissal was fair as it related to ‘taking the company down’ but that there was a detriment suffered as a result of research conducted in relation to making a protected disclosure to the Information Commissioner's Office. An award of £2500 for injured feelings was made.

Practical Lessons

This case demonstrates the extent to which the GB legislation on protected disclosures has been interpreted to include situations when an employer acts because a disclosure may be made but has not yet been made.  The NI legislation in the Public Interest Disclosure (NI) Order 1998 is a mirror image to that contained in the amendments to the Employment Rights Act 1996, which was interpreted in this case.

As a result, employers should be cognisant that a decision cannot be made on the basis that an individual may make a protected disclosure.   The legislation on protected disclosures may not account for such instances on the face of it but this interpretation shows a widening and greater protection for employees who may become a whistleblower. 
https://assets.publishing.service.gov.uk/media/5d48265240f0b65a022458b4/Mr_J_Bilsbrough_v_Berry_Marketing_Services_Ltd_1401692.2018.pdf