Protected disclosure & whistleblowing

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Protected disclosure & whistleblowing

We were instructed to review a whistleblowing claim relating to the attempted cover up by an employer of a data protection breach. The claim arose from the mysterious dismissal of our client for poor performance which we claimed arose from his disclosure of the breach. 

Result

We were able to settle the claim before the full hearing at the Employment Tribunal and recover our costs.

The case

Our client, a senior IT Compliance Manager was responsible for ensuring information security of employee personal data. There was a major breach in the processing which led to a substantive amount of personal and confidential data being released into the wrong hands.  The breach was made by a third party data processor acting for the employer.

Our client made a protected disclosure to the Global Head of HR. He was ignored. Following the disclosure he was given an ‘under performing’ rating at his appraisal.  He was subsequently selected for redundancy as a poor performer and dismissed.

How we settled the claim

There is a skill in achieving settlement.  The skill lies in the process we apply in case planning and methodology. Our approach in this case was to:

  • Assess the strengths of the claim on a worst case scenario so our client knew where he stood;
  • Calculate the likely compensation if successful;
  • Invite the employer to negotiate; and
  • Negotiate a settlement before the case went to trial.

Background

During a system test, the third party data processor supplier failed to anonymise data.  This breach meant that reports with personal details for thousands of UK employees were provided to the global team and leaked to other parties. Under the Data Protection Act, it is the employer who is responsible for any breaches in security. The Data Protection Act is clear that liability does not rest with the data processing supplier.

The employer had its own security policy. Our client initiated the employer’s breach-management plan. However, his line manager put pressure on him to not inform the affected individuals or the ICO (Information Commissioner’s Office).

Legal implications

Our client made what he reasonably believed was a protected disclosure. To qualify for protection, the employee must reasonably believe that he is making a qualifying disclosure. The disclosure must also be made in the interests of the wider public. Given the number of people impacted by the data protection breach the wider public interest requirement was satisfied.

Detrimental treatment due to whistleblowing

Having made a disclosure, our client was now protected by law. The law is designed to protect an employee from suffering any detrimental treatment because he made a disclosure. Detrimental treatment includes threats, disciplinary action, loss of work or pay or damage to career prospects.

Dismissal due to whistleblowing

Any dismissal because of the disclosure is automatically unfair. There is no qualifying period or cap on compensation when claiming unfair dismissal due to whistleblowing.

Employer’s reaction to whistleblowing

The line manager was angry that our client had referred the issue higher up. He accused him of ‘interfering’ in front of other team members. The line manager started to criticise his work. He complained that things were taking too long and were poorly done. Minor issues with the system were blown out of proportion. Blame was pointed at our client.

Shortly afterward the protected disclosure:

  • He was called to a disciplinary meeting and told that his performance was to be monitored via a personal development plan.
  • Key projects were re-assigned to junior members of the team who then reported directly to our client’s line manager.
  • His line manager would not speak to him unless absolutely necessary.
  • Our client was given an ‘under performer’ rating at his appraisal.
  • “Discretionary” bonuses were awarded to staff at our client’s level with very few exceptions. Our client was the exception and did not receive a bonus.

Before he had completed two years’ employment he was dismissed for redundancy.

Strength of our client’s claim

Our client had a strong case suggesting that the detrimental treatment and dismissal had a link to the protected disclosure. Before the disclosure our client was well regarded and had received good appraisals.

Compensation if successful

We provided an assessment of the likely level of compensation that could be awarded if we were successful. Compensation is based on the loss of earnings. Employees are required to mitigate their losses. This means look for another job. However, that can be difficult where breaches have been reported.

Compensation for dismissal due to whistleblowing is uncapped and can run into thousands of pounds.

Compensation for injury to feelings can be claimed for any detriment suffered up to the point of dismissal.

Negotiating a settlement

Court action is lengthy and costly with no real certainty at the start. Where there is merit we try to negotiate and settle before resorting to court action.

We invited the employer to enter into negotiations but received no response. Employers can be difficult to bring to the negotiating table. Often they believe that if they stand their ground the employee will eventually go away.

Settlement

Before the case reached court the employer settled.  We used our assessment of damages to negotiate a generous settlement offer.

Our client received a very good reference and a generous payment in respect of compensation for loss of office and his full bonus entitlement.

Matt Gingell is a partner in the employment law team who has worked on a variety of whistle blowing allegations.  Matt has considerable experience in analysing evidence and has the judgement needed.  He is also well practiced in dealing with unfair treatment in the work place and finding appropriate solutions.