Dismissal after contacting Information Commissioner was fair

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.