Labour & European Law Review Weekly Issue 435 02 September 2015
A worker must “reasonably believe” that the information contained in a disclosure is substantially true” (among other things) in order to constitute a qualifying disclosure under section 43F of the Data Protection Act 1998 (DPA). In Barton v Royal Borough of Greenwich, the Employment Appeal Tribunal (EAT) held that it is not possible to convert a disclosure that does not qualify by associating it with another disclosure that does.
Mr Barton, who had at one time been an elected shop steward, was contacted by a colleague who alleged that his line manager had sent hundreds of documents containing personal data about him to her home e-mail address, which he believed was not part of a secure system. Mr Barton e-mailed his concerns in December 2011 to the Information Commissioners Office (ICO), and then contacted his line managers.
His employer told him that he should have referred the matter to his line managers before contacting the ICO, and that he should not contact the ICO or any other external body without prior authority from his line manager. His employer then investigated and found that the manager had emailed 11 documents in total, none of which were confidential to her home email, which was password protected.
Mr Barton then telephoned the ICO in January 2012 to seek advice about the legality of his employer’s instruction not to contact them, rather than to deal with a separate disclosure of information. The Council regarded this as a serious breach of duty and he was summarily dismissed.
Mr Barton, who was already subject to a written warning about an unrelated matter, claimed he had been unfairly dismissed for whistleblowing on the grounds that his original email to the ICO and the subsequent telephone call were protected communications.
Taking the two disclosures separately, the tribunal held that the email of December 2011 was a qualifying disclosure, and that Mr Barton’s belief that there had been a breach of the DPA was a reasonable one in the circumstances. However, it was not a protected disclosure because it did not satisfy section 43F of the DPA which requires claimants to “reasonably believe that the information disclosed was substantially true”.
The telephone call of 11 January 2012 to the ICO was not even a qualifying disclosure however, because there was no disclosure of information. Apart from anything else, there was no immediate urgency to the matter, no one had told Mr Barton there had been a breach of contract, and he had not taken any steps to evaluate the legality of his employer’s instruction. The tribunal said that, “… put shortly, he ‘jumped the gun’”. It concluded that Mr Barton’s telephone call to the ICO constituted a conduct reason for his dismissal.
Mr Barton appealed on the basis that if the two disclosures were aggregated, they constituted a protected disclosure together. He also argued that the instruction not to contact the ICO was unlawful, contrary to public policy and a breach of Article 10 (freedom of expression) of the European Convention on Human Rights.
The EAT disagreed, holding that it was not possible to convert a disclosure that does not qualify by associating it with another disclosure that does qualify. Each disclosure to the ICO must be considered separately and could not be aggregated.
It also held that the instruction given to Mr Barton by his employer was a proper instruction, that there was no basis for finding that public policy would impose a blanket restriction on any limitation of contact between an employee and the ICO, and declined to entertain the Article 10 point.
The tribunal was entitled to come to the conclusion that Mr Barton’s belief was not a reasonable one; that he had “jumped the gun” in circumstances where he knew or could fairly easily have found out that there was no real urgency; and there was time to verify his colleague’s allegations, which turned out to be wholly misconceived.
The appeal was therefore dismissed.