Ms C Stewart v Foreign, Commonwealth and Development Office: 2204590/2022 

Summary

A senior UK government official turned whistleblower succeeded in a claim for unfair dismissal against her employer.  

Facts 

Ms Stewart was a senior official of the Foreign Commonwealth and Development Office (FCDO) of the United Kingdom, working in Kabul, Afghanistan.  

In December 2021, Ms Stewart gave an interview as an anonymous source to Ms Kotecha, a journalist for BBC television show Newsnight, expressing concerns about what she considered were failings of the FCDO and UK government in the withdrawal from Afghanistan in 2021. Ms Stewart provided evidence to Ms Kotecha corroborating similar claims made by another employee (Mr Marshall). In January 2022, Ms Stewart supplied Ms Kotecha with screenshots of sensitive emails, but Ms Kotecha did not publish a story in respect of these emails.  

On 27 January 2022, Ms Kotecha unintentionally tweeted images disclosing Ms Stewart’s identity. Following the FCDO’s discovery of Ms Stewart’s identity, the FCDO withdrew Ms Stewart’s security clearances, citing ‘significant concerns’ with Ms Stewart’s ‘honesty, integrity, judgment and discretion’ which were raised potential security risks see [66]). Ms Stewart unsuccessfully appealed this decision within the FCDO. On 22 June 2022, FCDO sent Ms Stewart a letter of termination on grounds that there were no available roles with her level of security clearance. 

Ms Stewart made a claim that she had been unfairly dismissed by the FCDO under section 103A and/or section 98 of the Employment Rights Act 1996 (ERA) UK. 

Decision 

Section 103A of the ERA 

Under section 103A of the ERA, an employee is unfairly dismissed if (1) they made a “protected disclosure”; and (2) the principal reason for their dismissal was their protected disclosure. 

In determining whether an employee made a “protected disclosure”, the employee must prove under section 43A of the ERA that (1) they made a “qualifying disclosure”; and (2) they made their disclosure in any one of the ways prescribed in sections 43C to 43H of the ERA. 

Was the interview a “qualifying” disclosure? 

Under subsection 43B(1) of the ERA, a disclosure is a “qualifying disclosure” if the worker reasonably believes (1) their disclosure is made in the public interest; and (2) their disclosure tends to show one or more of the six categories listed in subsection 43B(1) of the ERA. 

The Tribunal accepted the interview constituted a qualifying disclosure, because Ms Stewart reasonably believed her disclosure was in the public interest and that the interview showed that the ‘health and safety of an individual’ had been endangered (s43B(1)(d)).  

Was the interview a “protected disclosure”? 

The Tribunal accepted Ms Stewart’s argument that the interview was also a protected disclosure, because it was made in the way prescribed in section 43G of the ERA. For the purposes of subsections 43G(1)(b)-(c), a worker must reasonably believe their disclosure is true and must not be made for personal gain.  

For the purposes of subsections 43G(1)(d) and 43G(2), a worker must believe they will suffer detriment if they make the disclosure to their employer. The Tribunal agreed that Ms Stewart held this belief. The Tribunal agreed that Mr Marshall (Ms Stewart’s former colleague) had raised his concerns internally and subsequently resigned, creating a reasonable inference that Ms Stewart may be put under pressure to resign because of her disclosure.  

Finally, addressing the last requirement of subsection 43G(1) (being subsection (e)), the Tribunal found it was reasonable in all the circumstances for Ms Stewart to make the disclosure having regard to the non-exhaustive list contained in subsection 43G(3) and found that the relevant failure was serious because it involved a risk to safety and possibly lives. 

Were the email screenshots a “qualifying disclosure”? 

Under section 103A of the ERA, an employee is unfairly dismissed if the principal reason for the dismissal was because that employee made a protected disclosure.  

The Tribunal analysed Ms Stewart’s disclosure of email screenshots to the media under s 103A of the ERA. The Tribunal concluded that the emails were not a qualifying disclosure because they failed to show endangerment of others’ health and safety. The emails did not demonstrate that vulnerable people had been deprioritised.  

Was the protected disclosure the principal reason for dismissal? 

The Tribunal found Ms Stewart’s qualifying and protected disclosure, being the interview with journalist Ms Kotecha, was not the principal reason for her dismissal. Judge Glennie expressed that there were competing reasons for Ms Stewart’s dismissal, including her failure to use internal reporting mechanisms and FCDO’s perceived risk of future information leaks. Further, Judge Glennie found that Ms Stewart’s disclosure of emails to the media was a key reason for her dismissal and that this disclosure was not protected disclosure (unlike the interview).  

Accordingly, Ms Stewart failed to establish unfair dismissal pursuant to section 103A of the ERA.  

Section 98 of the ERA 

The Tribunal accepted that the FCDO had established that the principal reason Ms Stewart’s dismissal (with withdrawal of her security clearance) was justified. Accordingly, the key question was whether the dismissal was fair having regard to the FCDO’s reason for dismissal and the matters set out in section 98(4), being considerations of reasonableness, equity and the employer having sufficient reasons. 

Judge Glennie found Ms Stewart’s dismissal was unfair because throughout the internal appeal process in respect of her security clearance withdrawal, FCDO did not consider whether Ms Stewart’s disclosures were protected disclosures. The Tribunal determined that no reasonable employer could dismiss an employee using a process which failed to engage with the case the employee put forward. Accordingly, the Tribunal concluded that the dismissal was unfair.  

Commentary 

This UK decision has been lauded as a landmark win for whistleblowers. That conclusion should be treated with caution, because while Judge Glennie found that Ms Stewart was unfairly dismissed, he also found that Ms Stewart failed the section 103A test because the ‘principal reason’ for Ms Stewart’s dismissal was not that she made a ‘protected disclosure’.  

In this regard, Judge Glennie expressed that there were competing reasons for Ms Stewart’s dismissal including her failure to use internal reporting mechanisms and FCDO’s perceived risk of future data leaks. Without making a conclusion on these specific facts, His Honour left open the idea that these factors could outweigh a finding of ‘protected disclosure’, such that the making of a protected disclosure would no longer be the ‘principal’ reason for dismissal. However, in the writer’s opinion these factors should not be considered as separate opposing factors. By their very nature, whistleblowers utilise external reporting mechanisms and will likely always be perceived by their organisation to be a data breach risk. As such, Judge Glennie’s obiter allows for factors inherent to making a ‘protected disclosure’, to invalidate a ‘protected disclosure’. Considering the purpose of section 103A is to safeguard whistleblowers from unfair dismissal, this conclusion risks undermining the purpose of the legislation and whistleblower rights.  

Further, Judge Glennie reasoned that although Ms Stewart made two separate disclosures to Ms Kotecha, only the BBC Newsnight interview was a protected disclosure. He determined that the disclosure of emails were not protected disclosures because they did not reasonably show the endangering of health and safety. Judge Glennie rightly notes that the emails in isolation only demonstrate that certain staff were approved for evacuation and this alone did not prove that this was at the expense of another group. However, in Kilraine v Wandsworth LBC [2018] EWCA Civ 1436 the England and Wales Court of Appeal affirmed that a disclosure ‘should be assessed in the light of the particular context in which it was made’. Whilst Ms Kotecha only publicised the emails, those emails were disclosed in the context of Ms Stewart’s statement where she demonstrated her reasonable belief that the Prime Minister effectively prioritised certain staff over more vulnerable people. While the emails alone did not reasonably demonstrate the endangering of health and safety, they would have if considered in the disclosure’s broader context. 

Judge Glennie’s decision implies that courts should narrowly interpret the meaning of ‘disclosure’. This approach contradicts past cases the Tribunal and superior courts have heard as well as the principle of statutory interpretation that protective legislation should be interpreted broadly in the UK and around the world.  

The decision risks disincentivising whistleblowing by introducing greater uncertainty around the meaning of ‘protected disclosure’ and by narrowing the scope of disclosure to only disclosures that enter the public domain. 

This case note was prepared by Michael Tan at King & Wood Mallesons.