The claimant had completed three months’ work for the Respondent and was informed that her probationary period would be extended by three months to allow for her suitability to be assessed.  This period of time is well short of the 2 year period of employment requirement to obtain the right not to be unfairly dismissed in England and Wales under Section 108 of the Employment Rights Act 1996 (1 year in Northern Ireland under Article 140 of the Employment Rights (NI) Order 1996).

Shortly after the extension of the probationary period the claimant was dismissed for myriad issues, including unsatisfactory work performance and unacceptable conduct.   She argued that she had made a protected disclosure and that she had been unfairly dismissed.   The disclosure related to compliance with the Data Protection Act and the failure to provide the claimant with a work phone and data storage facilities.

The ET found that the disclosure made by the claimant was not in the public interest but was based upon her own contractual position.  This was demonstrated by the fact that potential breaches of data protection were outlined in the performance issues leading to the claimant’s dismissal.   The ET further found that the disclosures lacked sufficient detail to qualify as a disclosure under the legislation.  Accordingly, the claim was dismissed and the claimant sought to appeal the decision.

The appeal was based upon the assertion that the ET erred in its approach as to whether there was a protected disclosure, that it failed to make proper findings and the hearing was conducted unfairly.  On the first issue relating to whether there was a protected disclosure the appeal was upheld with Her Honour Judge Eady QC stating the ET failed to ask whether the claimant had a reasonable belief that the disclosure was in the public interest.

It was held that, given the sensitive information the respondent dealt with (relating to HIV diagnosis, domestic violence and FGM), it was hard to see how it would not be reasonable to find that it was in the public interest.  It was also held that there was no explanation by the ET of how the disclosure lacked sufficient detail.

The fact that there was such limited procedure in the dismissal with it being contained in one letter following the disclosure it was found that it was reasonable that the disclosures informed the decision to dismiss the claimant.   As a result, the appeal was successful with the case being remitted to the ET for consideration of whether the claimant would have reasonably felt the disclosure was in the public interest and whether it had sufficient information to be a qualifying disclosure.

Practical Lessons

This case demonstrates the additional protection given to an employee when they have made a protected disclosure as the 1 year requirement of employment in Northern Ireland does not apply for the purposes of unfair dismissal.  In terms of whether there has been a qualifying disclosure it must align with the Public Interest Disclosure (NI) Order 1998.  This case has shown that the question is whether the claimant felt it was reasonably in the public interest rather than whether the Tribunal finds that the disclosure is in the public interest.  This must be borne in mind when an employer is dealing with an employee who has made a disclosure.
https://assets.publishing.service.gov.uk/media/5d6694e740f0b607c3adc08a/Miss_G_Okwu_v_Rise_Community_Action__A_company_Limited_by_guarantee__UKEAT_0082_19_OO.pdf