Whistle-blowing: Employee’s defence of poor performance can be in public interest

The Employment Appeal Tribunal (EAT) recently found that an employee could still be protected as a whistle-blower even when she raised her concerns in response to a poor performance review. The EAT disagreed with the earlier decision of the employment tribunal, which found that the employee’s concerns were personal contractual matters and not raised in the public interest.

The claimant in Okwu v Rise Community Action [2019] was employed by a charity as a support worker for victims of domestic violence and female genital mutilation. The charity raised a number of concerns with Ms Okwu about her performance. In response, Ms Okwu wrote to her employer complaining about her employment situation. Her letter referred to her employer not giving her a pension. She also raised concerns about the lack of secure file storage and having to share a mobile phone to contact her clients. Given the highly sensitive nature of the information that her clients shared with her, she said that these failings were a breach of data protection law.

The charity went on to dismiss Ms Okwu for poor performance, noting that her letter showed her contempt for the charity. Ms Okwu claimed that she had been unfairly dismissed for blowing the whistle in relation to the charity’s potential breaches of data protection law. Usually employees need to have worked for at least two years for the same employer to bring an unfair dismissal claim. Ms Okwu had only a few months’ service, however, employees do not need to have worked for a minimum period of time to bring a whistle-blowing claim.

In order for Ms Okwu to be protected as a whistle-blower, she had to have a reasonable belief that she was raising concerns in the public interest. The tribunal found that the issues she complained about in her letter did not have sufficient public interest because they ‘only related to her and nobody else’. However, the EAT sent the case back to the tribunal to consider this point again. The EAT pointed out that a whistle-blower can have mixed interests when raising concerns, and in this case it was hard to see how Ms Okwu’s disclosures could not have been in the public interest.

This case highlights that managers need to keep an eye out for possible whistle-blowing disclosures. The tribunal might go on to decide that Ms Okwu’s disclosures were not the main reason for her dismissal. If so, her unfair dismissal claim would fail. However, proving that whistle-blowing is not the reason for dismissal should be easier where the employer picks up on any potential whistle-blowing and deals with it appropriately.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.