Call the Information Commissioner

15 May 2015

The EAT has recently decided a case concerning unfair dismissal and the unauthorised disclosure of material to the Information Commissioners Office.  This is about the latter.

Mr Barton worked for a council. He was an elected Shop Steward and received information from a colleague who complained about a large amount of confidential personal data ("hundreds of documents and emails") being sent by his manager from the Council's secure IT system to her home computer. Mr Barton e-mailed the ICO for advice. In doing so he disclosed the information he'd been given. He then told his Head of Department what he'd done.

The HoD asked Mr Barton if he obtained approval to contact the ICO (one might think that a slightly odd reaction to news of a possible massive leak of sensitive data). Mr Barton laid his bait:

"Please do not be silly about this. I do not need to seek authorisation before speaking to the ICO for advice."

Predictably:      the HoD took the bait. He tore Mr Barton off a strip and told him not to contact the ICO again pending an investigation.

Predictably:      Mr Barton rang the ICO who advised that the HoD didn't have authority to prohibit further contact.

Predictably:      Mr Barton fed this back.

No prizes for deducing where this is going; Mr Barton was disciplined for failing to follow instructions and exposing the Council to reputational damage.

Now for the interesting bit; the Employment Tribunal found the original enquiry was a qualified disclosure but it was not protected because Mr Barton's belief in the allegations couldn't be reasonable. He went to the ICO too early in the game. The EAT let this stand. It then dodged the issue concerning the prohibition and Article 10 of the Human Rights Convention by finding the ban wasn't absolute. The council merely requested Mr Barton hold off pending enquiry. Accordingly the prohibition was not unlawful.

This doesn't mean employers may impose gagging orders willy nilly. It's more a lesson in how internal reporting procedures should be encouraged and operated without fear or favour – and how the reasonable belief test operates.