Whistleblowers have the right not to be dismissed or subjected to detrimental treatment because they have whistle blown. Up until the case of Bilsbrough v Berry Marketing Services Ltd , there has been no protection for those who are getting ready to whistleblow.
In this case, Mr Bilsbrough, was employed by Berry Marketing Services Ltd. He discovered a potential data security issue and reported it to a director of the company, rather than his line manager, Ms Swatkins. Although the disclosure had been made in accordance with the company’s Whistleblowing policy, Ms Swatkins was unhappy about being bypassed and very firmly told Mr Bilsbrough that he should “engage his brain” in future.
Mr Bilsbrough resented being spoken to in this manner and later told a colleague that he planned to “take the company down” by externally reporting the data security issues that he had uncovered. He began researching how to make a disclosure to the Information Commissioner’s Office (ICO). Ms Swatkins heard about Mr Bilsbrough’s plan and decided to suspend him pending disciplinary action. At the end of the disciplinary process, Mr Bilsbrough was summarily dismissed for having declared an intention to damage the company. He sued in the Employment Tribunal for detriment and dismissal because he was planning to blow the whistle.
The Employment Tribunal decided that Whistleblowing legislation covers proposed protected disclosures as well as actual protected disclosures in order to give effect to his right to freedom of expression under the European Convention of Human Rights.
The Tribunal said that, “…without such an interpretation, effective protection in the context of Whistleblowing is not given… if employers are permitted lawfully to sanction workers whom they perceive to have considered making or be liable to make a protected public interest disclosure this would have a chilling effect on the making on public interest disclosure.”
Protect the Whistleblowing charity, is lobbying for the legislation to be amended to cover both potential whistleblowers (such as Mr Bilsbrough) and perceived whistleblowers (i.e. those who are wrongly assumed to have blown the whistle).
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