M&S Whisleblower Dismissal - Who is Right?

In early September Marks & Spencer (M&S) dismissed an employee who had disclosed the company's redundancy plans to "The Times" two weeks earlier. The employee's union, the GMB, confirmed that the man had been dismissed for gross misconduct with a minimal award for lost holiday pay. The general secretary of the TUC, Brendan Barber, has spoken out against the decision. The company said that the employee had broken his contract by giving confidential information to the press. The GMB takes the view that this was "whistleblowing" but M&S say otherwise.

Which is right?

There are legal provisions which protect employees who are "whistelblowers" from dismissal. The Public Interest Disclosure Act 1998 has been in force since July 1999. The Act has nothing to do with the disclosure of confidential information, however. It exists to protect people who make disclosures about crimes, breaches of a legal obligation, miscarriages of justice, dangers to health and safety or the environment and to the concealing of evidence relating to any of these. Such whistleblowers are granted rights from the first day of their employment and compensation for dismissal can be unlimited. According to the M&S , “The employee concerned broke the company’s rules and regulations and deliberately leaked internal company information and made derogatory and speculative comments to the media, despite a variety of internal routes available to address any concerns.” The company's internal disciplinary procedure was used before the employee's dismissal.

It will be interesting to see if this high profile case ends up in an Employment Tribunal in the next three months.