23rd August 2019

Extension of Whistleblowing Protection

 

The decision taken by the Employment Tribunal in the recent case of Bilsbrough v Berry Marketing Services Ltd could see the doors open to extended protection for potential whistle-blowers.

Mr Bilsbrough was a client executive at Berry Marketing, a business which operates a directory of venues around the world, and provides clients with software to search and book venues for conferences and accounts.

In the course of his duties, Mr Bilsbrough uncovered a data issue with the venue database, in that it was possible for an individual to be added to the system and have access to sensitive data about the venue, including names of and emails addresses and attendees of events without the venue being aware that such access had been provided.

Mr Bilsbrough decided to report this potential data breach to a technical director, Mr Clark, rather than to his direct line manager, Ms Swatkins, as Ms Swatkins was not on the premises. Mr Bilsbrough’s actions were in compliance with Berry Marketing’s Whistleblowing Policy, which stated that a disclosure should be made to a director if the employee could not approach their line manager.

Whilst Mr Clark was pleased with Ms Bilsbrough’s disclosure, and action was taken to rectify the breach, Mr Bilsbrough’s direct line manager, Ms Swatkins was irritated that Mr Bilsbrough has gone above her head in making the disclosure, and made a very irate call to Mr Bilsbrough, and admonished him for by-passing her, telling him to “engage his brain next time”.

Mr Bilsbrough was angered by this call, and vented his frustration to his colleague, Ms Dobbs, telling her that he would take the Company down with the information he had. Mr Bilsbrough then began to research data protection principles, and how to make a disclosure to the Information Commissioner’s Office.

Ms Dobbs later reported Mr Bilsbrough’s comments about taking the Company down to Ms Swatkins. Subsequently, Mr Bilsbrough was suspended, and invited to an investigation meeting, at which it was confirmed that the Company was looking into an allegation that he had been researching “ways to take the Company down” in regards to an alleged data breach.

Mr Bilsbrough was subsequently dismissed for gross misconduct.

The Tribunal found that the dismissal was not unfair, as the Company had been clear that Mr Bilsbrough was not dismissed because he had researched how to make a disclosure, but because he had threatened to damage and destroy the Company when angered by Ms Swatkins, and the Company did not trust that Mr Bilsbrough would not try to take the Company down in other ways if he was to be angered again in the future.

However, in respect of Mr Bilsbrough period of suspension, the Tribunal found that this was connected to the Claimant’s research into making a protected disclosure.  Although Mr Bilsbrough had not if fact made a disclosure at this stage,  the Tribunal were persuaded that the protection of the law should be extended to those employees who were considering, or perceived as considering making a disclosure.

The Tribunal agreed with Counsel’s argument that, if employers were lawfully able to sanction employees before they made a public interest disclosure, then this would have a chilling effect on the making of public interest disclosures.

Mr Bilsbrough was awarded £2500 in damages for injury to feelings, in respect of the period of suspension.

This ruling does not set a precedent, as the case was only heard in a first tier Tribunal, and therefore the judgement is not binding on other Tribunals. However, this is the first time that a potential whistle-blower has been successful in arguing that they are entitled to the same legal protection as an employee who had actually made a protected disclosure, and this decision may prove significant in the development of the case law.

*All information is correct at the time of publishing

Rebekah Lindeman

Employment Law Adviser

Rebekah is a lawyer in the employment and HR department. She is proficient in drafting contracts, managing cases in the Employment Tribunal, and advising upon a wide range of employment law matters, including unfair dismissal, discrimination, and redundancy.

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