WikiWhistleblower: Tribunal tackles “glaring loophole” in whistleblowing law

August 21, 2019

2 min read

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What's going on here?

An employment tribunal has partly found in favour of a claimant former employee, awarding £2,500 in compensation, after he was dismissed for researching how to blow the whistle on his employer.

What does this mean?

Whistleblowing is when a worker passes on information – otherwise know as making an “information disclosure” – about a wrongdoing (a breach of the law for example). The whistle blower must only pass on information that they believe is in the public interest.

James Bilsbrough, a former client service executive at Berry Marketing Services Ltd (BMS), argued that he was unfairly dismissed after discovering an alleged data security breach by his employer. Bilsbrough raised his concerns with a company director only to be later rebuked by his line manager. He went on to announce to a fellow employee that he would “take the company down” and googled the whistleblowing process. After this information came to light, Bilsbrough was suspended and, following a disciplinary meeting, dismissed.

An employment tribunal found that BMS had fairly dismissed Bilsbrough for pledging to “take the company down” (pursuant to section 98(4) of the Employment Rights Act 1996). However, the tribunal also found that BMS’ decision to suspend Bilsbrough following the discovery of his research into whistleblowing contravened the protected disclosure regime (contained in sections 47B and 103A of the same Act) as well as impinging his freedom of expression (Article 10, ECHR).

The tribunal ardently defended an employee’s right to find out how to make a public interest disclosure, remarking that such research is an “integral part of making [one]”. However, no legal change results from this ruling because it is a non-binding first instance case.

What's the big picture effect?

That dismissing or sanctioning an employee for researching how to become a whistleblower is a breach of their right to freedom of expression exposes a “glaring loophole” in whistleblowing law, according to David Woodward (Bilsbrough’s solicitor). Currently, a disclosure has to have already been filed for whistleblower protections to apply. While this case extended those protections on these facts, there remains a loophole in the law in general.

This decision is the latest in a string of developments that have progressed whistleblowing legislation in recent years. In 2017, the definition of “public interest” was clarified in Chesterton Global Ltd v Nurmohamed. In this case LJ Underhill identified four key factors to consider: the number of people affected, the nature of the wrongdoing, the identity of the wrongdoer and the nature of the interests affected.

The ongoing case of Gilham v Ministry of Justice may also extend whistleblowing safeguards under the Employment Rights Act 1996 to judges, who currently do not enjoy such protection as they are considered to be “office-holders”. Furthermore, the EU’s 2019 Whistleblowing Directive aims to make whistleblowing easier by requiring official reporting mechanisms in all industry sectors, as well as further protecting against dismissal, demotion or any other forms of retaliation by employers when disclosures are made.

The Bilsbrough ruling continues this trend of progression and even though it is non-binding, it will lead to debate about an important gap in whistleblowing rights.

Report written by Will Holmes

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