Is Dominic Cummings Protected By Whistleblowing Legislation?

Is Dominic Cummings Protected By Whistleblowing Legislation?

In recent weeks, the newspapers have given extensive coverage to the Prime Minister’s former chief adviser Dominic Cumming’s explosive blog post in which he made several revelations concerning the Prime Minister and certain Whitehall staff.

Mr Cumming’s actions have already resulted in serious ramifications for the Prime Minister, his girlfriend Carrie Symonds, and other MPs and civil servants.  But what, if any, comeuppance could Mr Cummings, who was once trusted implicitly by the PM, face following his releasing of explosive text messages clearly meant for his employer’s eyes only?

What communications has Dominic Cumming’s alleged to have leaked to the media?

Downing Street has been fearful of the damage Dominic Cummings could do ever since he left his position in October 2020.  After all, this is one man who knows where all the “bodies are buried”.

At the time of writing, the following developments, which are relevant for the purposes of this article, have occurred:

• On 30 October 2020, it was leaked to the media that the government planned to implement a second national lockdown, despite stating for months that this was not an option. Thanks to the leak, Mr Johnson was forced to call an urgent press conference and plunge the country into lockdown.
• An inquiry into who leaked the news of the October lockdown, led by Cabinet Secretary Simon Case, was launched. After six months the Whitehall inquiry claimed there has been no success in finding the so-called “chatty rat”.
• On Thursday, 22 April 2021, Dominic Cummings was accused of being the “chatty rat” and the likely culprit in the leaking of messages between the Prime Minister and the businessman Sir James Dyson regarding seeking changes on tax rules over a plan to design and build ventilators at the peak of the first wave of the Covid-19 pandemic
• On Friday, 23 April, Mr Cummings fired off an explosive blog post in response to the Downing Street accusations. Not only did he deny being the source of the leaks, but he also said he had messages between the Prime Minister and Sir James in his possession.  Furthermore, he was prepared to hand these messages over to Mr Case, or worse, release them to the public.
• Mr Cummings also stated he no longer had access to his office emails, but he did not rule out that he may have forwarded some messages to his private account.

The above is a brief overview of what is an ongoing saga.  The question is, could Mr Cummings argue that his actions are that of a whistleblower therefore protected under the Public Interest Disclosure Act 1998 (PIDA).

What is the PIDA?

PIDA protects whistleblowers from unfair dismissal or detrimental treatment.

PIDA creates two levels of protection for whistleblowing:

1. If an employee is dismissed and the reason for the dismissal, or the principal reason is for making a protected disclosure, the dismissal will be deemed automatically unfair.
2. Workers are protected from being subjected to detrimental treatment because they have made a protected disclosure. The definition of ‘worker’ under PIDA is broad and includes employees, employee shareholders, and a wide range of other people.

In Onyango v Berkeley (t/a Berkeley Solicitors) UKEAT/0407/12 the Employment Appeals Tribunal held that a disclosure made after employment has terminated, as is the case with Mr Cummings, can still be a protected disclosure.

What is a protected disclosure?

A disclosure is protected if, in the reasonable belief of the person making the disclosure, it was made in the public interest and tends to show one or more of the types of wrongdoing or failure listed in section 43B(1) (a)-(f) of the Employment Rights Act 1996, which are:

1. “that a criminal offence has been committed, is being committed or is likely to be committed,
2. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
3. that a miscarriage of justice has occurred, is occurring or is likely to occur,
4. that the health or safety of any individual has been, is being or is likely to be endangered,
5. that the environment has been, is being or is likely to be damaged, or
6. that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”

 

Will a disclosure be protected if it is done so via the media?

For a disclosure to be protected it must be made to one of the categories of people listed in sections 43C-43H in the Employment Rights Act 1996.  These are:

• the employer of the person making the disclosure
• the person responsible for the failure
• a Solicitor
• a Government Minister
• a person prescribed by the Secretary of State
• a person not covered in the above as long as strict conditions are met (known as wider disclosure)

For wider qualifying disclosures to be protected, the whistleblower must prove they:

• believed the information they disclosed is true
• are not disclosing for personal gain
  • have previously disclosed substantially the same information to their employer or a prescribed person; or
  • reasonably believe at the time of making the wider disclosure that they would be subject to detriment if they disclose to their employer or prescribed person; or
  • believed (in cases where there is no prescribed person) the material evidence would be destroyed or concealed if disclosure were made to their employer
• it is reasonable for them to have made the disclosure

The conditions for wider disclosure can be relaxed if the failure is of an “exceptionally serious nature”.  However, the disclosure must still be true, not made for personal gain, and it must be reasonable for the person to make the disclosure.

Whether Dominic Cumming’s existing and potential disclosures will be deemed protected will depend on the information contained in the texts and emails he claims to have and how he discloses the information (it could be argued that his well-known blog fits into the ‘wider disclosure’ category).  Also important is whether or not a Tribunal would accept that the conditions for ‘wider disclosure’ were met.

Mr Cummings is due to appear before MPs investigating the identity of the ‘chatty rat’ later this month.  Whether he will make further disclosures at this time remains to be seen.

We will keep you up to date as this situation develops and cover any legal claims which may arise in the future.  In the meantime, if you have any questions about the legal subjects mentioned above, please contact our Employment Law Solicitors. 

To discuss anything mentioned in this article, please call us on 02476 231000 or email enquiries@askewslegal.co