The Court of Appeal has agreed with the Employment Appeal Tribunal (EAT) in the important 'whistleblowing' case of Bolton School v Evans, which examined the causal nature of the link between the protected disclosure and the detriment suffered by the employee who made it.
Mr Evans worked as a technology teacher in the Information and Communication Technology department at Bolton School. He was given a written disciplinary warning after he hacked into the school's computer system to demonstrate that it was not secure. He considered that he was disciplined for drawing the school's attention to a breach of the Data Protection Act and that the warning he received was a detriment suffered by him for making a protected disclosure to this effect. He resigned and brought a claim for constructive dismissal.
The Employment Tribunal found that he had been unfairly constructively dismissed for making a protected disclosure. However, the EAT overruled this decision, finding that the Public Interest Disclosure Act 1998 protects disclosure but not other conduct of the employee, even if it is connected to the disclosure. Had Mr Evans not broken into the computer system, it is unlikely that he would have been the subject of any disciplinary action. The law does not allow someone to commit what would otherwise be an act of misconduct in an attempt to show that their concerns are justified.
The Court of Appeal confirmed this ruling. However, Mr Evans is now seeking leave to appeal to the House of Lords.
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