Bolton School v Evans: [2006] EWCA Civ 1653

CA: Buxton, Latham and Longmore LJJ: 15 November 2006

The claimant resigned from his position as a technology teacher at the respondent school when he was disciplined after he informed the headmaster that he had accessed the network on a new computer system at the school, using encrypted passwords which he had decoded, in order to demonstrate the inadequacy of its security. He presented a claim to an employment tribunal claiming that he had been constructively dismissed because he had made a protected disclosure, as defined in section 43B(1)(b) of the Employment Rights Act 1996. The employment tribunal upheld the claim, finding that the claimant had made a protected disclosure; that the school’s reason for disciplining him was his conduct in entering the system in the way that he did, but that such conduct was part and parcel of his protected disclosure; and that the claimant was to be regarded as unfairly dismissed by virtue of section 103A of the Act. The school appealed to the Employment Appeal Tribunal, which concluded that the claimant had been dismissed, not because he made the disclosure, but because of his conduct in entering the computer system, and that the Act protected the disclosure of information an employee believed demonstrated wrongdoing but not actions of the employee directed at establishing or confirming the reasonableness of that belief. Accordingly, it allowed the appeal, but it remitted the case to the employment tribunal for it to consider whether, other than pursuant to the protected disclosure provisions, the claimant had been unfairly constructively dismissed.

The claimant appealed.

The Court of Appeal held:
(1) The provisions introduced by the Public Interest Disclosure Act 1998 used a common word, “disclosure”, and set out in some detail the circumstances in which that disclosure would or would not be protected, and there was no reason to give the concept some special meaning. Accordingly, the question whether the conduct for which the employee was disciplined was indeed “disclosure” remained a question for the normal meaning of that word, and the reference to “any disclosure of information” in the definition of a “qualifying disclosure” in section 43B(1) of the Employment Rights Act 1996 did not mean that the whole course of the claimant’s conduct should be regarded as an act of disclosure. In any event, it was plain that the claimant was disciplined for his irresponsible conduct, and not for telling his employer, by whatever means, that its system was insecure.

(2) Whether or not the school had a reasonably held belief that the claimant had no authority to enter the computer system in the way that he did, the question under the relevant provisions was not how the employer found out about the misconduct but why he disciplined the employee, and the tribunal’s findings as to why the claimant was disciplined were a conclusive answer to the question whether in any sense whatsoever he was dismissed for making a protected disclosure.

The appeal was dismissed.

Appearances: Daniel Barnett (Turbervilles, Uxbridge) for the school; James Laddie (Chattertons, Grantham) for the claimant.