Local Government Employment Review: October 2015 - Employee was fairly dismissed for disobeying an instruction

The Employment Appeal Tribunal has held that an employee was fairly dismissed for disobeying an instruction not to contact the Information Commissioner’s Office (ICO) without approval.

The employee in this case was an elected union shop steward, and a health and safety representative. He was contacted by a colleague, who expressed concern that his manager had emailed a large number of documents to her home computer. The colleague believed that the documents contained confidential personal data about himself, and claimed that ‘hundreds of documents and emails’ were attached.

The employee sent an email to the ICO requesting advice disclosing the information he had received from his colleague and, repeating the allegation that hundreds of emails and documents had been sent out of organisation’s secure system. He then relayed the same information to a senior manager and informed him that he had contacted the ICO.

The next day, the senior manager emailed the employee to ask whether he had sought authorisation from his manager before contacting the ICO, to which he responded ‘please do not be silly about this. I do not need to seek authorisation [from] anyone before speaking to the ICO for advice’.

At a meeting between the senior manager and the employee the senior manager then made it clear that he should have sought advice from his line manager as a first step. He informed the employee that he would be investigating the issue fully, and that in the meantime he should not contact the ICO without prior authorisation.

Despite this instruction the employee telephoned the ICO to ask whether his employer had authority to tell him not to contact them. The ICO said that it did not, and the employee relayed this back to the senior manager.

An investigation revealed that a total of 11 documents had been emailed none of which were confidential or in any way inappropriate.

The employee was informed that he would be subject to a disciplinary investigation in relation to his failure to comply with the instruction not to contact the ICO.

A further disciplinary investigation, concerning an unrelated matter, lead to the employee being suspended. Having taken into account the fact that the employee already had a final written warning in relation to a separate matter, the employer felt that his conduct constituted gross misconduct, and he was dismissed.

The employee brought a tribunal claim arguing that he had been unfairly dismissed as a result of protected disclosures he had made. After his claim was dismissed he appealed to the Employment Appeal Tribunal.

Dismissing his appeal the Employment Appeal Tribunal said that the email he had sent to the ICO amounted to a qualifying disclosure, but it was not a protected disclosure.

This was because the employee’s belief in the truth of the allegations was not reasonable. As the tribunal had said he had ‘jumped the gun’, and could have easily sought some verification of the allegations made by his colleague. The telephone call, it said, was not a disclosure of information, merely a request for advice, and so was not a qualifying disclosure.

The reason for the employee's dismissal, the Employment Appeal Tribunal said, was his misconduct.

The employee had argued that the prohibition on contacting the ICO was lawful under the Human Rights Act (the right to freedom of expression) but the Employment Appeal Tribunal declined to determine the issue as he had not raised this argument with the tribunal. It did, however, say that it would have found that the instruction was not unlawful as the prohibition was only for a short duration, while the employer conducted its own internal investigation, and was only a prohibition on contacting the ICO without the consent of his manager.

Case reference: Barton v Royal Borough of Greenwich

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