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Embedded communications and protected disclosures: the law following Barton v Royal Borough of Greenwich

Embedded communications and protected disclosures: the law following Barton v Royal Borough of Greenwich

By Rajiv Bhatt

In the recent case of Barton v Royal Borough of Greenwich UKEAT/0041/14/DXA (in which the respondent was represented by Cloisters’ barrister Sheryn Omeri) the claimant came to find out that his line manager had emailed documents which contained personal data to what he thought was her unsecured home email address. 

He considered this to be a significant breach of the Data Protection Act 1998 (“DPA 1998”), and so contacted the Information Commissioner’s Office (“ICO”) and thereafter his line managers.  

The respondent instructed him not to contact the ICO again without the prior authorisation of his line manager, and informed him that his concerns would be investigated.  Not satisfied, the claimant contacted the ICO, however this time to seek advice as to whether his employer’s instruction was lawful.  The respondent subsequently dismissed him for contacting the ICO as a failure to follow a reasonable management instruction.

 

In his employment tribunal claim, the claimant relied on his two communications to the ICO as separate acts capable of qualifying as protected disclosures.  The ET dismissed his claims.  It held that the first disclosure amounted to a qualifying disclosure, however as the claimant did not hold the requisite reasonable belief that the information he had provided was substantially true it was not a protected disclosure.  As to his second disclosure, the ET held that this was not a qualifying disclosure as it did not disclose ‘information’.

The claimant’s appeal also failed.  His appeal consisted of various grounds, however two are of interest:

  1. In relation to the whistleblowing claim, the claimant argued that the tribunal should have viewed the two disclosures together in order to determine whether they amounted to a protected disclosure; and
  2. For the purposes of the unfair dismissal claim, he argued that the instruction not to contact the ICO was unlawful and therefore the tribunal was wrong to have regard to its breach as a proper basis for dismissing the claimant.

Turning first to the whistleblowing claim, HHJ Serota QC rejected this argument.  He held that “one cannot convert a disclosure that does not qualify, for example because it is not a disclosure of information, by associating it with another disclosure that does qualify” (at [80]).

This case did not concern a situation where it could be said that the earlier communication was embedded in the later communication, and can therefore be distinguished from Norbrook Laboratories v Shaw[2014] ICR 540 (the Respondent in that case was represented by Cloisters’ Jacques Algazy QC).  In Norbrook, the claimant sent a series of email communications, which when read together, amounted to a communication about the health and safety of employees being at risk due to dangerous road conditions; the ET found that in the course of the emails the claimant was “informing his employer that the road conditions are so dangerous that the health and safety of his team is being placed at risk”.  Slade J therefore held that an “earlier communication can be read together with a later one as “embedded” within it, rendering the later communication a protected disclosure, even if taken on their own they would not qualify [as qualifying disclosures]” (at [22]).  However, in Barton, each communication related to a different subject matter – the communications could not, when read together, be linked.  The first communication concerned potential breaches of the DPA 1998, whereas the second communication requested employment law advice.

Though Norbrook suggests that employers should be wary before concluding that employees will not be protected when communications taken on their own do not amount to protected disclosures, Barton is an example, following the line of authority in Bolton School v Evans [2007] ICR 641, of acts and communications that are unable to be aggregated so as to invoke the statutory protection 

In relation to the unfair dismissal ground - this was also rejected. HHJ Serota QC, applying Farrant v Woodroffe School [1998] ICR 184 he held that “...the question of whether the instruction that is disobeyed was lawful is a relevant, as opposed to a decisive question when considering the reasonableness of the dismissal under s98(4)…” (at [99]). The question was whether it had been reasonable for the respondent’s dismissing officer to have concluded that the instruction had been lawful and reasonable such that its breach would warrant dismissal.

A further point that arose in relation to this ground was that the argument that the instruction not to contact the ICO was an unlawful fetter on the claimant’s Article 10 ECHR rights was not raised in the ET.  The EAT held that such an argument would require a factual analysis going beyond the evidence adduced before the ET.  HHJ Serota QC applied Kumchyk v Derby City Council [1978] ICR 1116 and declined to exercise his discretion to permit the point to be raised.  

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