Okwu v The Shrewsbury & Rise Community Action

A disclosure concerning the insecure handling of service users’ sensitive personal data may be a qualifying disclosure under section 43B of the Employment Rights Act 1996. The tribunal must decide whether the worker reasonably believed that the disclosure was in the public interest. A personal interest in the matter does not preclude that belief where the disclosure also concerns a wider public interest.

The tribunal must also make a clear finding on the actual reason, or principal reason, for dismissal. Evidence of pre-existing performance concerns does not by itself answer whether a later protected disclosure informed the decision to dismiss.

The Claimant, employed by a small charity on probation, was dismissed after writing to its trustees. Her letter included concerns about shared communications equipment and insecure storage of service users’ sensitive personal information, said to breach the Data Protection Act.

The Employment Tribunal at London East rejected her claim of automatic unfair dismissal. It held that her disclosures were personal contractual matters, were not in the public interest, and lacked sufficient detail. It also referred to evidence of performance and conduct concerns. The Claimant appealed, alleging errors concerning protected disclosure, the reason for dismissal, and procedural fairness.

The central issues were whether the data-protection concerns were capable of protected disclosure and whether the Tribunal had adequately determined the reason for dismissal.

1. Appeal allowed on the protected-disclosure and dismissal-reason grounds. The matter was remitted to the same Employment Tribunal, if practicable.

2. The relevant question under section 43B of the Employment Rights Act 1996 was whether the Claimant disclosed information which she reasonably believed was both in the public interest and capable of tending to show a failure to comply with a legal obligation. The Tribunal had permissibly treated the other matters in her letter as personal contractual matters. It erred, however, by failing properly to address the separate disclosure concerning service users’ sensitive information.

3. The disclosure concerning shared internet and telephone access and storage of a service user’s sensitive file was sufficiently particularised to be capable of tending to show a breach of a data-protection obligation. The Tribunal gave no sustainable explanation for finding otherwise. Nor did it ask whether the Claimant reasonably believed the disclosure was in the public interest. Given the sensitive information and service users involved, that belief was difficult to dispute. A worker may have both a personal and a public-interest motivation.

4. The Claimant bore the burden of showing that a protected disclosure was the reason, or principal reason, for dismissal under section 103A. The Tribunal could accept that the Respondent had genuine performance concerns. But it did not clearly find that those concerns caused the dismissal, rather than the Claimant’s letter sent after her probation had been extended. It failed to engage with the Claimant’s case that the stated antagonism towards the charity referred to the protected disclosures in that letter.

5. The procedural-unfairness grounds failed. The case-management decisions caused no identifiable unfairness, and the hearing as a whole was fair. The remission was nonetheless necessary because the Tribunal had lost direction on specific issues, not because its decision was fundamentally flawed.

• Employment Appeal Tribunal: Allowed the appeal on the protected-disclosure and dismissal-reason issues and remitted them for reconsideration.
• Employment Tribunal, London East: Dismissed the Claimant’s claim of automatic unfair dismissal for protected disclosure.