Can disclosures be linked together as a single act to form a protected disclosure?
Ted Flanagan, Head of Employment Law at Gosschalks, discusses Barton v Royal Borough of Greenwich, which questioned what constitutes a protected disclosure.
Mr Barton worked at Greenwich Council. When a colleague told him there had been a wide scale unauthorised disclosure of information, he emailed the Information Commissioners Office (ICO) to tell them.
As it happened, the information was not true. The Claimant could’ve easily checked this with his manager.
While the Council looked into the matter, they instructed Mr Barton not to have any further contact with the ICO. Thereupon Mr Barton telephoned the ICO to discuss the Council’s instruction not to contact them or discuss the matter with them!
Mr Barton was disciplined for disobeying a reasonable instruction and, on the basis that he was already on an unrelated final written warning, was dismissed.
Mr Barton’s whistleblowing claim failed. But one of the issues the EAT considered was whether different aspects of a purported whistleblower’s conduct could be ‘aggregated together’ to make one disclosure.
Mr Barton wanted the initial email and subsequent phone call seen as a single act and as a protected disclosure. The EAT rejected this on the basis that “each disclosure must be considered separately.”
Interestingly, and as an aside, the EAT said they wouldn’t have considered the instruction not to contact the ICO to be lawful on these facts.
What this means for you
Whistleblowing claims are reasonably rare, but when they do occur they have the potential to be quite messy.
This case does at least give employers some relief. In that, it stops an individual who might have been raising complaints on a scattergun approach, both internally and externally for months or years, from trying to lump all of those together.
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