UK: tribunal extends whistleblowing protection to those perceived to be considering making a protected disclosure

An employment tribunal has extended the scope of whistleblowing protection to cover workers who are considering making a protected disclosure, or whom the employer perceives to be considering doing this.  As a first instance decision this will not be binding on other tribunals, but it is the first time it has been successfully argued that protection should be extended in this way and is likely to herald future claims on the same basis.

In this case the tribunal made a finding of fact that the claimant had been subjected to detriment (being upbraided by his manager and suspended) because the employer believed that he had been researching ways to make a protected disclosure concerning data breaches to the Information Commissioner's Office.  The statutory whistleblowing provisions only expressly protect workers from detriment or dismissal if they have in fact made a protected disclosure;  in contrast, discrimination legislation protects an individual if the employer believes that they have done or may do a protected act. The claimant successfully argued that, in order to give effect to his right to freedom of expression under Article 10 European Convention of Human Rights, words should be read into the whistleblowing provisions to include the situation where an employer subjects a worker to a detriment or dismisses them on the ground that the employer believed that the worker had been considering making a protected disclosure. Without such protection, there would be "a chilling effect" on the making of protective disclosures. (Bilsbrough v Berry Marketing Services Ltd)