Whistleblowing and anticipated disclosures

Bilsbrough v Berry Marketing Services Ltd

It is unlawful to subject an individual to a detriment or dismiss them on the grounds that the employer perceived them to be considering making a protected disclosure.

Section 47B of the Employment Rights Act 1996 states that a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure.

Section 103 of the Employment Rights Act 1996 states that an employee who is dismissed shall be treated as unfairly dismissed if the reason (or, if more than one, the principal reason) is that the employee has made a protected disclosure.

Background

Mr Bilsbrough discovered an alleged data breach at his employer and reported it to a director rather than to his line manager (who was not on site at the time); this was in line with the company’s whistleblowing policy. When his line manager discovered this, she admonished Mr Bilsbrough telling him to ‘engage his brain next time’. Mr Bilsbrough took exception to this and told a colleague that he’d ‘take the company down’ with the information he had. He then began to investigate how to make a disclosure to the Information Commissioner. He found another job and had resigned but then decided to stay with the company and when one of his colleagues overheard him boasting about his promotion, they went to the employer and told them what Mr Bilsbrough had said about bringing the company down. When his employer found out about this, he was suspended and, following a disciplinary meeting, summarily dismissed. The reason given was gross misconduct due to his expressed intention to ‘take the company down’. Mr Bilsbrough had not been employed for two years and so brought claims of being subjected to a detriment and automatic unfair dismissal because he’d made a protected disclosure.

Tribunal decision

Mr Bilsbrough’s automatic unfair dismissal claim was not upheld – he wasn’t dismissed because of his research but because he’d threatened to damage or destroy the company, and that threat was separate from his research into how to make a disclosure.

However, his claim under s. 47B, namely that he had been subjected to a detriment, was upheld, with £2,500 awarded for injury to feelings. The tribunal found that being admonished by his line manager and being suspended were both detriments.

Mr Bilsbrough successfully argued that to give effect to his right under EU law of freedom of expression (art. 10 of the European Convention on Human Rights), s. 47B (and s. 103) should be read so as to include the situation where an employer subjects a worker to a detriment or dismisses them on the ground that the employer believed that a worker had been considering making a protected disclosure. If an employee does not know how to make a protected disclosure to a regulator, he or she will have no option but to research how to do so said the tribunal. If such an employee is behaving responsibly in preparing to make a disclosure, then the dismissal of such a person or subjecting them to a detriment because of that research would be an interference with that employee’s right to freedom of expression.

Link to judgment: https://www.bailii.org/uk/cases/UKET/2019/1401692_2018.html

Comment

As a tribunal decision this is, of course, not binding on other tribunals – and it’ll be interesting to see whether it survives any possible appeal. However, the reasoning in relation to the interpretation of the law has to be right because otherwise it would leave a gaping hole in the protection offered to those making protected disclosures.

As this was an automatic unfair dismissal claim the tribunal was not concerned with the process followed or reasonable grounds for believing etc but was only interested in the reason for the dismissal.

Interesting, at paragraph 76 the tribunal record the case of Agoreyo v London Borough of Lambeth as confirming that suspension is not a neutral act but in fact this was overturned by the Court of Appeal in March 2019 when London Borough of Lambeth appealed.