Barton

v

The Royal Borough of Greenwich

Hello again, after last night’s election action we thought it would be best to keep this week’s case short and sweet.

The questions this week are:

Is it reasonable for an employer to instruct an employee not to make protected disclosures to third parties?

Can a phone call be classed as a protected disclosure?

Mr Barton, the Claimant, was employed by The Royal Borough of Greenwich, the Respondent, as a shop steward and health and safety representative. A colleague told the Claimant that his line manager had sent hundreds of work emails to her personal computer. The colleague believed that the emails contained personal information of numerous employees and that the manager’s personal computer did not have the same level of security protection as a work computer

The Respondent had a policy for whistleblowing and the Claimant went against this policy and raised his concerns to the Information Commissioner’s Office (ICO) before reporting it to his managers. However, the information his colleague had told him was completely inaccurate, his manager had only emailed 11 messages to her personal PC, all of which were password protected and none contained any personal information.

Upon reporting the matter to his managers the Claimant was instructed  to make any further disclosures to the Respondent rather than external parties as stated in the Respondent’s whistleblowing policy. The Claimant then proceeded to call the ICO to seek advice about this instruction from his managers.

Prior to these events the Claimant had also been given warnings for his conduct and had been on a final written warning for arguing with a manager. Furthermore at the same time as the whistle blowing incident the Claimant had sent an inappropriate letter to a client which had been deemed very offensive. The Claimant was dismissed for breaching his duty.

The Claimant went to tribunal with claims for unfair dismissal and victimisation due to being a whistleblower. The Respondent argued that both of his communications with the ICO weren’t protected disclosures as the first was false and the second no information was disclosed. They also argued the Claimant had not been victimised for making disclosures but had been fairly dismissed due to numerous disciplinary problems.

The Tribunal ruled that only the email that the Claimant sent to the ICO counted as a protected disclosure but the phone call did not. It also stated that his further communications with the ICO amounted to insubordinate behaviour and given his other disciplinary issues he was found to have been fairly dismissed.

The Claimant appealed the decision arguing that the instruction not to communicate with the ICO was unlawful. The EAT rejected the appeal because the second conversation with the ICO did not amount to a disclosure so it would not alter the outcome of the dismissal judgment, whether the instruction was lawful or not. It elaborated further by saying the instruction not to contact the ICO was legal as they had a whistleblowing policy and therefore the instruction not to make disclosures to third parties was reasonable.

So today’s lesson and in answer to the questions:

Yes, it is reasonable for an employer to instruct employees where to make disclosures to, providing they have a suitable policy and procedures for dealing with disclosures. If the employee is unsatisfied with how their disclosure is being handled it may then be fair for them to contact third parties.

No, in this case a phone call can’t be classed as a protected disclosure as no information was exchanged. If information was exchanged it would then be permissible as a protected disclosure.