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29 May 2015

Employee fairly dismissed for disobeying instruction not to contact ICO

Mr Barton was employed by the Royal Borough of Greenwich (Greenwich) as a tenancy relations officer. He was an elected union shop steward and a health and safety representative. In 2011 a colleague, Mr Oree, contacted Mr Barton, expressing concern that his manager, Ms Thomas, had emailed "hundreds of documents and emails" to her home computer. Mr Oree believed that these documents contained confidential personal data about himself.

Mr Barton consulted the website of the Information Commissioner’s Office (ICO) before sending an email requesting advice.  In his email, Mr Barton repeated Mr Oree’s allegation regarding the “hundreds of documents and emails”, also informing his manager, Mr O’Malley, and letting him know that he had contacted the ICO.

Mr O’Malley asked Mr Barton whether he had sought authorisation before contacting the ICO and was told that he had not.  Mr O’Malley told Mr Barton that a full investigation would be carried out and instructed him not to contact the ICO without prior authorisation.  In spite of the instruction not to do so, Mr Barton did contact the ICO again, seeking advice as to whether Greenwich had authority to tell him not to contact them.

The investigation revealed that Ms Thomas had in fact emailed only 11 documents to her personal email account, none which were confidential or in any way inappropriate.  An investigation was carried out into Mr Barton’s failure to comply with the instruction not to contact the ICO, followed soon after by an investigation into a complaint by a tenant regarding an inappropriate letter sent by Mr Barton.  Greenwich, taking into account Mr Barton’s live written warning, concluded that his conduct (contacting the ICO and the letter to the tenant) constituted gross misconduct and he was summarily dismissed, although this was reduced on appeal to dismissal with 12 weeks’ notice.

Mr Barton brought a claim, alleging that he had been dismissed unfairly as a result of protected disclosures he had made, relying on both the email to the ICO and the subsequent telephone call.

The Decision

The Tribunal rejected Mr Barton’s argument that the email and the telephone call should be considered as a combined disclosure.  It found that the call was not a disclosure of information, merely a request for advice.  In considering whether the email to the ICO was a protected disclosure, the Tribunal held that, although it conveyed a disclosure of information, it could only be protected if Mr Barton reasonably believed that the information and any allegation contained within it were substantially true.  The Tribunal held that Mr Barton’s belief in the truth of the allegations was not reasonable; he could easily have sought some verification of the allegations before acting.

The Tribunal therefore dismissed Mr Barton’s whistleblowing claims, concluding that misconduct was the reason for his dismissal and that the decision to dismiss was within the band of reasonable responses, taking into account his earlier warning.  Mr Barton appealed the decision but was unsuccessful.  The EAT found that there was no blanket ban on Mr Barton contacting the ICO; he had merely been asked not to contact them during the internal investigation.  What is more, the instruction was not to contact the ICO without a manager’s consent and there was no evidence to suggest that such a request would have been refused.

Comment

Employers should not read this case as allowing them to restrict employees from contacting external authorities.  Although the ET and the EAT concluded that Greenwich’s instruction was reasonable in the circumstances, it was a very specific and limited instruction.  Employers can and should encourage employees to report matters internally in the first instance but they cannot generally prevent employees from contacting external authorities.