Bolton School v Evans

Whistleblowing legislation protects the disclosure of information which the worker reasonably believes tends to show specified wrongdoing. It does not ordinarily protect conduct undertaken to investigate, establish or confirm that belief.

Whether disciplinary action or dismissal was because of a protected disclosure depends on the employer’s actual reason. An employer’s unreasonable or mistaken belief that the worker committed misconduct may bear on ordinary unfair dismissal, but it does not establish whistleblowing liability where misconduct was genuinely the reason for the action. Tribunals should nevertheless scrutinise assertions that action was taken for conduct related to a disclosure rather than for the disclosure itself.

A teacher concerned about the security of his employer’s computer network obtained passwords, accessed the system and disabled some user accounts. He then reported what he had done and explained the perceived security weakness. The Employment Tribunal found that he had made a protected disclosure concerning compliance with the seventh data protection principle. It treated his investigation as inseparable from that disclosure and found that a disciplinary warning led to an automatically unfair constructive dismissal.

The Employment Appeal Tribunal held that the school disciplined the teacher because it genuinely regarded his access as misconduct, rather than because he disclosed the security weakness. It set aside the whistleblowing finding and remitted the ordinary constructive-dismissal issue to the same tribunal. The teacher appealed on the scope of “disclosure” and the employer’s reason for acting. The school cross-appealed against remission to the same tribunal.

1. Appeal and cross-appeal dismissed. The Court of Appeal unanimously upheld the Employment Appeal Tribunal’s conclusion that the teacher had been disciplined for perceived misconduct, rather than for making a protected disclosure. It also upheld the decision to remit the outstanding ordinary constructive-dismissal issue to the same Employment Tribunal.
2. The word “disclosure” in section 43B of the Employment Rights Act 1996 bears its normal meaning. The statutory scheme specifies in detail when a disclosure receives protection. It provides no basis for extending protection to all conduct undertaken before, or in connection with, the communication of information. The Employment Tribunal’s broader policy-based construction failed to respect the statutory language.
3. The teacher’s access to the network was distinct from his communication of the security weakness. When he told the headmaster what had occurred, he reported both the vulnerability and his own completed actions. Disciplining him for those actions did not amount to disciplining him for reporting them. The suggested “entire transaction” approach was artificial.
4. Even if the entire course of conduct could be characterised as a continuing disclosure, section 103A required identification of the employer’s reason or principal reason for dismissal. The tribunals had found that the school genuinely believed the teacher had committed misconduct. That belief, rather than the protected disclosure, caused the warning and resulting constructive dismissal. The fact that the belief was mistaken or unreasonable was relevant to ordinary unfair dismissal, but did not alter the employer’s actual reason.
5. A tribunal should examine carefully a contention that disciplinary action concerned acts related to a disclosure rather than the disclosure itself. On these findings, however, there was no basis for attributing an ulterior motive to the school. The disclosure was the means by which the headmaster learnt about the conduct, but how misconduct was discovered is distinct from why the employer imposed discipline.
6. The choice whether to remit the ordinary constructive-dismissal issue to the same tribunal was evaluative. The Employment Appeal Tribunal was aware of the alleged appearance of pre-judgment and had particular experience of the practical realities of employment proceedings. The Court of Appeal declined to interfere with that decision.

1. Court of Appeal (Civil Division): The teacher’s appeal against the rejection of his whistleblowing claim was dismissed. The school’s cross-appeal against remission to the same Employment Tribunal was also dismissed: [2006] EWCA Civ 1653.
2. Employment Appeal Tribunal: It held that the teacher was disciplined for conduct which the school genuinely regarded as misconduct, not for making the protected disclosure. It set aside the whistleblowing basis of constructive dismissal and remitted the ordinary constructive-dismissal issue to the same Employment Tribunal.
3. Employment Tribunal: It found that the teacher had made a protected disclosure and treated his investigation as inseparable from it. It concluded that the resulting disciplinary warning produced an automatically unfair constructive dismissal.