Is it enough that a worker believes a disclosure is in the public interest? In the recent case of Okwu v. Rise Community Action, the Employment Appeal Tribunal (EAT) considered whether it is sufficient for whistle blowing protection for an employee to have a reasonable belief that their disclosure is in the public interest.
Facts of the case
Ms Okwu was an employee of Rise Community Action (Rise), a small charity providing support for individuals affected by domestic violence, female genital mutilation or HIV. She was employed as a domestic violence and female genital mutilation specialist worker and her contract was initially subject to a three-month probation period.
Due to performance concerns, Rise extended Ms Okwu’s probation period for a further three months. Ms Okwu subsequently wrote to Rise raising a number of concerns, including that it was acting in breach of the Data Protection Act by failing to provide her with her own mobile phone with secure storage when she was dealing with sensitive and confidential information. Following receipt of Ms Okwu’s letter, which contained what the Employment Tribunal (ET) later described as “unfounded allegations”, Rise terminated her employment on performance grounds.
Ms Okwu did not appeal her dismissal, but issued ET proceedings against Rise claiming (among other allegations) that she had been unfairly dismissed for making protected disclosures. As Ms Okwu did not have the requisite two years’ service to bring an ordinary unfair dismissal claim she could only succeed if she could show she had made a protected disclosure which was the reason or principal reason for her dismissal.
The ET held that the concerns raised were not in the public interest and, as such, did not amount to qualifying disclosures, let alone protected ones. Ms Okwu’s claim was dismissed.
On appeal, the EAT found that the ET was wrong in its approach as it had failed to ask whether Ms Okwu had a reasonable belief that her disclosure was in the public interest.
The ET had considered that Ms Okwu’s disclosure was primarily made in relation to her assessment of her own performance. However, the EAT commented that it does not necessarily follow that Ms Okwu did not reasonably believe that her disclosure was in the public interest, although it may not have been the only motivation. Given the nature of the interest in question, the EAT suggested that it would be “hard to see” how the disclosure would not, in Ms Okwu’s reasonable belief, be in the public interest. The case was sent back to the ET for reconsideration.
This case confirms that, when determining whether a disclosure is in the public interest for the purpose of a qualifying disclosure under section 43B Employment Rights Act 1996, it is sufficient that the employee or worker has a reasonable belief that it is.