Barton v Royal Borough of Greenwich

A worker cannot create a protected disclosure by aggregating separate communications. Each communication must independently satisfy the statutory requirements, including disclosure of information where required.

An Employment Appeal Tribunal will ordinarily refuse a new appellate point where it was not raised below and would require further factual investigation. In an unfair-dismissal case based on disobedience of an instruction, the instruction’s lawfulness is relevant but not decisive. A genuine and reasonable, although mistaken, employer belief in misconduct may establish a potentially fair conduct reason.

The claimant, a local-authority employee, emailed the Information Commissioner’s Office about an alleged data-protection breach. He later telephoned the ICO for advice after being instructed not to contact it or other external bodies without his line manager’s authority while the employer investigated.

The Employment Tribunal held that the email was a qualifying disclosure but not a protected disclosure because the claimant lacked a reasonable belief in its substantial truth. It held that the telephone call was not a qualifying disclosure and dismissed the whistleblowing and unfair-dismissal claims. The claimant appealed, contending that the communications should be treated together and that the instruction was unlawful.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant’s email was not a protected disclosure. Its conclusion that he lacked a reasonable belief in the substantial truth of the allegations was a factual conclusion open to it on the evidence.
2. Separate communications could not be aggregated. Following Bolton School v Evans, [2007] ICR 641, each alleged disclosure had to be considered independently. The later telephone call could not be converted into a qualifying disclosure by association with the earlier email, and did not itself provide the necessary protected disclosure.
3. The claimant could not establish automatic unfair dismissal under section 103A of the Employment Rights Act 1996. Neither communication was protected, and the Tribunal was entitled to find that dismissal was for misconduct: disobeying the instruction and sending the inappropriate Harrington letter.
4. The Tribunal declined to entertain the new public-policy and Article 10 argument. Under Kumchyk v Derby City Council, [1978] ICR 1116, a new point is admitted only very sparingly, particularly where factual investigation would be required. No sufficient explanation had been given for not advancing it below.
5. In any event, the instruction was not unlawful on the facts found. It was limited, required prior authority rather than imposing an absolute bar, and concerned seeking advice while an internal inquiry was underway. An employee’s right to provide necessary information to the ICO did not establish an unrestricted right to seek such advice.
6. For ordinary unfair dismissal, the lawfulness of a disobeyed instruction was relevant but not decisive under section 98(4) of the Employment Rights Act 1996. The employer had reasonable grounds to regard the instruction as legitimate and its breach as misconduct. Dismissal, also taking account of the live final warning and the Harrington letter, was within the range of reasonable responses.

• Employment Appeal Tribunal: Appeal dismissed: [2015] UKEAT 0041_14_0105.
• Employment Tribunal, London South: Judgment dated 18 September 2013 and sent to the parties on 2 October 2013. It dismissed the whistleblowing and unfair-dismissal claims.