Bolton School v Evans

LORD JUSTICE SEDLEY: Mr Evans, who appears in person this morning, is a schoolteacher who specialises in information and communications technology. While he was employed at Bolton School he received a formal written warning for having, albeit with permission, tested the school’s new IT system and shown it to be vulnerable to hacking by pupils into what was supposed to be a secure network for the teaching staff. When his internal appeal against this blot on his record was dismissed, he resigned and brought Employment Tribunal Proceedings against the school.

He alleged, and he succeeded in his allegations, that the school had (a) subjected him to a detriment and then constructively dismissed him for making a qualifying disclosure contrary to section 47B and 103A of the Employment Right’s Act 1996; alternatively (b) that he had been constructively unfairly dismissed contrary to section 98 of that Act.

A qualifying disclosure for this purpose is a disclosure which, in the reasonable belief of the employee making it, tends to show that a person is failing to comply with a legal obligation – in this case, the school’s obligation to maintain data security under the seventh principle scheduled to the Data Protection Act 1998. The Employment Appeal Tribunal summarised the scheme in this way in paragraph 27, page 31 of the bundle:

The Employment Tribunal nevertheless found Mr Evans one quarter to blame for not having sufficiently involved his line manager in what he was proposing to do and for involving a third party in decrypting the passwords in order to access the network.

The Employment Tribunal’s findings in what is an important but still novel area of employee protection are cogently reasoned. The EAT in its turn dismissed the school’s appeal on two of the three grounds that advanced, namely that there had been no protected disclosure at all and that the applicant did not know enough law to have reasonably believed that there was a potential breach of the Data Protection Act, but allowed it on the remaining grounds that the Employment Tribunal had erroneously treated what he had done as “an aspect of that disclosure which attracted the same protection as the specific disclosure of information itself” rather than as independent act of indiscipline. It was, in the Employment Appeal Tribunal’s view, the latter rather than the former.

Not the least of the reasons why this third limb of the EAT’s conclusions may be vulnerable is that it has to stand, and may not easily do so, with their reasons for rejecting the first two grounds of appeal. The EAT did not consider that the issue was properly described as one of causation, but that too seems to me debatable. What it turned on, on any view, was the phrase “on the grounds that the worker has made a protected disclosure”. However it is categorised, whether or not as a question of causation, it is submitted by Mr Evans that the EAT has made an error in concluding on the basis of the Employment Tribunal’s fact findings that he had been disciplined not for making a disclosure to his employer but for disrupting the school’s ICT network without authority.

As to the “ordinary” constructive dismissal case under section 98, the EAT remitted that for further findings to be made, given that it had so far been predicated on the making of a protected disclosure.

It seemed to me on reading the papers that the single issue on which school succeeded under the Public Interest Disclosure Act 1998 is one on which Mr Evans has a real prospect of success before this court. It is also, I think, arguably one of general public importance, since there are likely to be few cases where a whistle-blower has not been dismissed for what the employer genuinely believes to be misconduct; so that the purpose and effectiveness of the 1998 Act may themselves be in question.

I propose therefore to grant permission to appeal. Since the outcome may affect the remitted part of the claim the parties may be prepared to agree that it should abide the decision of this court. If not, then there will be liberty to apply me or to another Lord Justice for directions. I have explained to Mr Evans that he moves now from a cost-free jurisdiction into a cost-bearing jurisdiction, and the risks that that carries for him. I have also indicated to him that if he wishes to resume representation, as he had below, by a lay representative, the court should be notified in good time and an application be made to it so that a decision can be made well in advance as to whether he may be so represented or not.