Case update (3): Whistleblowing – What is in the Public Interest?

Summary: For a disclosure to be ‘in the public interest’, is it enough that the employee has a reasonable belief that this is the case?

Yes, held the EAT in Okwu v Rise Community Action available here.

Facts:  Ms Okwu was a new starter with Rise – a small charitable organisation – supporting individuals affected by domestic violence, FGM and HIV. She had what was described as a long and varied experience of social work and was expected to make early progress to support service users and help to promote the service.  However, unfortunately Rise were not convinced by Miss Okwu’s early performance and extended her probationary period for a further three months. Shortly after this, Ms Okwu raised some concerns with Rise, which included a ‘disclosure’ that they were acting in breach of the Data Protection Act (DPA) by failing to provide her with a work mobile and secure storage, given she was dealing with sensitive personal data.

Rise took the view that Ms Okwu had made a number of unfounded allegations and decided to dismiss her. The letter referred to her poor performance and conduct (which it had raised with her as part of her performance reviews). It then went on to say that its decision was ‘compounded by [her letter] which … demonstrated your contempt for the charity, its work and its client group.’‘

Ms Okwu brought a Tribunal claim on the basis that she had been unfairly dismissed for making protected disclosures.

The Tribunal rejected Ms Okwu’s claims and found that the matters she raised concerned only her own position and were not in the public interest.

Ms Okwu appealed to the EAT.  The EAT upheld Ms Okwu’s appeal and found that the Tribunal had misapplied the public interest test. The key question isn’t whether the issues raised were in the public interest, but whether Ms Okwu reasonably believed them to be in the public interest.  It found that the matters raised by Miss Okwu clearly referred to breaches of obligations under the DPA and so it was difficult to understand how she could not have a reasonable belief that her disclosures were in the public interest.

Implications: This case highlights the importance for employers to consider carefully whether a complaint made by an employee could amount to a protected disclosure, taking into account the mindset of the employee making the disclosure. 

Employees only have to show they have a reasonable belief that their allegations are in the public interest. This is unlikely to be much of a challenge for employees.  Therefore, unless you can prove that an employee has deliberately lied, it’s best to take steps to investigate their concerns.