In this case, the Employment Appeal Tribunal was asked to decide whether or not it was fair to dismiss an employee for failing to comply with an instruction not to contact the Information Commissioner’s Office.
This is the case of Barton v. Royal Borough of Greenwich. Mr Barton was a union shop steward and health and safety representative at the Borough. One of his colleagues reported to him his concern that another employee had emailed a large number confidential of documents to herself on her home computer. Mr Barton contacted the Information Commissioner’s Office to ask them what he should do about this information.
Mr Barton relayed what the ICO had told him, and the allegation about the confidential information, to his boss, Mr O’Malley. Mr O’Malley told him “Please do not be silly about this”, and asked him not to contact the ICO without his authorisation in future, because this would be jumping the gun, as the matter had not been investigated, and could cause the Borough reputational damage.
Mr Barton phoned the ICO again, in contravention of Mr O’Malley’s instruction, to ask them whether or not Mr O’Malley was allowed to prevent him from contacting them. They said that he was not.
Mr O’Malley subsequently disciplined Mr Barton for disobeying his instruction not to call the ICO, and, because there were other previous disciplinary allegations against him, Mr Barton was dismissed for gross misconduct.
This case turned on whether or not Mr Barton had any whistleblowing protection at all, because, in cases like this where the whistle is blown not to the employer, but to a statutory body such as the Information Commissioner’s Office, the employee needs to have a reasonable belief that the allegations are true. In this case, the Employment Appeal Tribunal agreed that the employee, Mr Barton, had no reasonable grounds to believe that the allegations were true, having not looked into them at all. Indeed, they turned out not to be true, as the employee in question had not emailed herself any confidential information.
Furthermore, the instruction to Mr Barton not to contact the ICO without authorisation was not unlawful, as there was no evidence to suggest that authorisation would have been refused. Crucially, even if the instruction had been unlawful, this would not have been a decisive factor in this case. Remember, employers only need to have a reasonable belief that the employee is guilty of misconduct and its decision only needs to be within the “range of reasonable responses”.
Obviously, this case should not give carte blanche to employers to stop their employees from contacting external authorities to whistleblow! In fact, this should normally be encouraged. Such encouragement will make it far easier for employers to defend claims relating to whistleblowing. Furthermore, the employers were lucky that the disclosure in this case was not protected, and the ICO obviously took a different view from the EAT as to whether or not the instruction not to contact them was unlawful!
The case is also a useful reminder of the degree of latitude employers have when dismissing for disciplinary reasons.