The Public Interest Disclosure Act 1998 (PIDA) – often referred to as the ‘Whistleblowing’ Act – came into force in July 1999. PIDA inserted new sections into the Employment Rights Act 1996 which give workers legal protection when disclosing information relating to crimes, breaches of a legal obligation, miscarriages of justice, dangers to health and safety or the environment and to the concealing of evidence relating to any of these. In particular, PIDA makes it automatically unfair dismissal to dismiss an employee for making a ‘protected disclosure’, in good faith, to someone to whom they are entitled to make it, and it is unlawful to penalise them for doing so.
In Bolton School v Evans, the Employment Appeal Tribunal (EAT) examined the causal nature of the link between the protected disclosure and the detriment suffered by the employee who made it.
Mr Evans worked as a technology teacher in the Information and Communication Technology (ICT) department at Bolton School. The school was planning to consolidate its existing computer networks into a new system which would be used both by pupils for teaching purposes as well as by staff for administrative purposes and record keeping. Mr Evans was concerned that data security issues were not being satisfactorily addressed and feared that it would be relatively easy for someone to gain unauthorised access to information held on the system, which could be a breach of the Data Protection Act 1998 (DPA).
When the new network was in place, a decision was taken not to install the intended security system but to rely on password security instead. Mr Evans did not think this was adequate and discussed these concerns with colleagues. He was of the opinion that the person responsible for the system was happy for him to test to see if he could break into it. This he did and he succeeded in disabling some of the user accounts for the ICT Services department by gaining access to them from the learning centre used by students. This caused disruption to the network as ICT Services closed it down, fearing that someone had hacked into the system.
The school accepted that Mr Evans had acted in good faith but, because it believed that he had deliberately hacked into the computer network without permission, he was given a written disciplinary warning. Mr Evans was of the view that he did have the authority to act as he had. He considered that he was being disciplined for drawing the school’s attention to a breach of the DPA and that the warning was a detriment suffered by him for making a protected disclosure to this effect. He resigned and brought a claim for constructive dismissal.
The school argued that he was disciplined for hacking into the computer system, not because he had disclosed matters of public interest.
The Employment Tribunal (ET) found that Mr Evans’s resignation did amount to constructive dismissal. He had made a protected disclosure as he had reasonably believed that the information tended to show that the school had failed, or was likely to fail, in its obligations under the DPA. The ET did not regard Mr Evans’s conduct in hacking into the computer as being separate from the disclosure itself but considered it ‘part and parcel’ of it, thereby attracting the same protection. The ET also judged that the dismissal amounted to unfair dismissal independently of the protected disclosure provisions.
Bolton School appealed against this decision. The EAT considered that the ET had erred in regarding Mr Evans’s conduct as part of the protected disclosure. PIDA protects disclosure but not other conduct of the employee, even if it is connected to the disclosure. Had Mr Evans not broken into the computer system, it is unlikely that he would have been the subject of any disciplinary action. The law does not allow someone to commit what would otherwise be acts of misconduct in an attempt to show that their concerns are justified.
The Court of Appeal confirmed this ruling. However, Mr Evans is reported to be seeking leave to appeal to the House of Lords.
It is in the interest of all employers to make sure that employees are confidentl that they can raise concerns internally and without suffering any detriment. Whistleblowing policies should be tailor-made to suit the individual organisation.
