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Dismissal after contacting Information Commissioner was fair
In Barton v Royal Borough of Greenwich IDS 1026 page 6, the EAT has upheld an Employment Tribunal decision that the Employer’s dismissal of an employee who contacted the Information Commissioner, in breach of the employer’s express instruction not to do so without approval, was fairly dismissed. The Tribunal, endorsed by the EAT, had established that the communication to the Information Commissioner was not a qualifying disclosure and the employee was not able to rely upon an “associative connection” with an earlier disclosure (in which he alleged a breach of the Data Protection Act) to convert his later disclosure into a qualifying disclosure. The EAT also upheld the Tribunal’s decision that the dismissal was within the range of reasonable responses open to the employer: the employee had previously contacted the Commissioner with allegations of breaches of Data Protection without bothering to check their accuracy or inform his employer first. In these circumstances, the Tribunal considered that it was legitimate of the employer to require the employee to tell it first before contacting the Commissioner again.
The second “disclosure” consisted of the employee contacting the Information Commissioner to establish whether or not his employer’s instruction not to do so without its permission was a legitimate instruction. The individual was subsequently dismissed, not only for disobeying the employer’s express instruction regarding the Information Commissioner but also following disciplinary proceedings concerning aspects of his work.
This decision conflicts with another decision in a different branch of the EAT, that of Norbrook Laboratories (GB) Limited v Shaw which held that separate communications could be taken together to amount to a protected disclosure – this was the case where the manager expressed concerns about employees driving in snowy conditions in three emails to two different recipients. It is in contrast to the decision in this new case which held that a qualifying disclosure, could not operate to convert a subsequent disclosure which did not qualify, into a protected disclosure. There are now conflicting EAT decisions on this point.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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