Representation:-
editors notes:
For relevant general notes see Whistleblowing/a general note and Constructive dismissal/a general note
Outline Facts:-
Mr Evans was employed as a technology teacher in a school's ICT department. He resigned on the basis that he had sought to highlight serious failings of a new computer system following which he was disciplined and received a written warning. He thought he had been subject to a detriment (the written warning) by making what he considered to be a "qualifying disclosure" and this was contrary to Employment Rights Act 1996 s.47B.
The background was that the school had a new computer installed. Mr Evans had concerns over security issues and in particular that students could hack into confidential information stored on the same server to which they had access and that these concerns had not been satisfactorily addressed. He wished to demonstrate the inadequacy of the system and over one weekend, using a PC to which students had access, he hacked into the system. This did not affect the data on the system and the staff and students could still access the computer. However, the school's ICT department could not gain access and it had to shut down the system.
The school carried out an investigation and this was followed by a disciplinary hearing. The headmaster reached a decision that Mr Evans, whilst acting in good faith, had deliberately hacked into the network. A written warning was issued. Mr Evans appealed to the Governors alleging that he was being disciplined for drawing the school's attention to the potential for committing data protection offences. The appeal was dismissed. Mr Evans took the view that his position was untenable and resigned and took his case to the Employment Tribunal.
The Tribunal at Manchester unanimously held that Mr Evans had been unfairly constructively dismissed for making a protected disclosure. His dismissal was therefore automatically unfair dismissal (Employment Rights Act 1996 s.103A). The tribunal also found that even if this was wrong and the dismissal was not automatically unfair, it was still unfair under general unfair dismissal law (see Constructive Dismissal/a general note and Unfair dismissal/fair or unfair? ) and also that he had suffered a detriment for making the disclosure (Employment Rights Act 1996 s.47B).
The school appealed to the EAT.
Decision
The school won to the extent that the EAT overruled the original tribunal's findings of automatic unfair dismissal and that Mr Evans had suffered a detriment by reason of making a protected disclosure (see Bolton School v Evans, EAT on 7th February 2006). However, the case was remitted back to the Employment Tribunal to determine whether in the circumstances there was a constructive dismissal (and if so whether it was or was not unfair on general grounds).
The EAT (Elias J) said that Mr Evans had notified the school that he had broken into the system and the reason why - that a breach of a legal obligation (Data Protection) was likely to occur. On this basis it was a "qualifying disclosure". The employment tribunal had concluded that Mr Evans had a 'reasonable belief' (see Employment Rights Act 1996 s.43B(1)(b)) that the information tended to show that the school had failed, or was likely to fail, in its obligations under the Data Protection Act 1998.
However, the EAT went on to say that to take the benefit of the statutory protection afforded to whistleblowers an employee must be subject to a detriment "on the grounds that" he made a protected disclosure. This was not the case here. The Employment Tribunal had found that Mr Evans had been disciplined because he had hacked into the computer system without authority not because he had made a protected disclosure but nevertheless had concluded that he was entitled to the protection of the whistleblowing provisions and that his resignation amounted to constructive dismissal and was automatically unfair by reason of ERA 1996 s.103A. The EAT held that this conclusion was wrong - in the words of the EAT (paras 61-62):
"............. the Tribunal did fall into error in this part of its decision. The statute protects disclosure but not other conduct by the employee even if connected in some way to that disclosure ...........The employers acted because of their belief that it was irresponsible for [Mr Evans] to have [hacked into the system] even if the purpose was to demonstrate the force of his concerns."
The EAT concluded that the law only protects an employee if he has reasonable grounds for his belief. It does not allow an employee to commit what would otherwise be acts of misconduct in the hope he can establish justification for that belief. Elias P. used the example of an employee breaking into an employer's filing cabinet in the hope of finding some evidence of wrongdoing and that he would be liable to be disciplined for such conduct whether or not he turns up any evidence. He said (para 68):
"Putting it simply, it seems to us that the law protects the disclosure of information which the employee reasonably believes tends to demonstrate the kind of wrongdoing, or anticpated wrongdoing, which is covered by ERA 1996 s.43B. It does not protect the actions of the employee which are directed to establishing or confirming the reasonableness of that belief.