Edinburgh sheriff orders council to hand over report into abuse to whistleblower employee
A sheriff in Edinburgh Sheriff Court has found that a local authority employee who acted as a whistleblower in its education department is entitled to an unabridged copy of an independent report into the events surrounding his original protected disclosures.
John Travers, who had been an employee of the City of Edinburgh Council for 39 years, had sent emails under a pseudonym to the council’s leader concerning the education department and was later subject to harassment over it. He argued that the defender had agreed to provide him with a copy of the report as a condition of handing over files in his possession.
The case was heard by Sheriff Alastair Noble. The pursuer was represented by Smith QC and the defender by Sandison QC.
Not accessible to council employees
The pursuer was previously employed in the defender’s community education department in 2002. Around this time, he sent four emails under the pseudonym “Donald Reekie” to the then-leader of the Council alleging misuse of public funds and breaches of contract by council employee. Other emails using this pseudonym were later sent, but not by the pursuer.
In January 2003 the pursuer was notified that he was to the subject of a disciplinary hearing. After he was sanctioned by the defender, he challenged the decision in the Employment Tribunal on the basis that the four emails were protected disclosures and was eventually awarded compensation in January 2006. While the disciplinary and ET proceedings were ongoing, the pursuer and his wife, also an employee of the defender, was subject to harassment in multiple forms, including the sending of pornography to his wife’s work computer.
In October 2015, the pursuer and his wife entered into discussions with the then-leader of the Conservative Group on the council concerning a council-sponsored inquiry into the unresolved events between them and the defender. Their position was that they would welcome an inquiry provided that the documentation would not be accessible to people within the council or its employees, and they would be given the completed report.
A draft agreement was created providing for an independent investigation into the conduct of council staff towards the pursuer from 2002 to 2006. Following the completion of the final report, which was sent to the defender’s monitoring officer, the defender refused to give the pursuer a copy of the report. Instead, he was only given excerpts from it with many of the sections missing. The pursuer’s solicitors were also unable to obtain a full copy of the report.
It was submitted that the parties had entered into an agreement under which the defender agreed to provide the pursuer with a copy of the report in exchange for documentation in his possession relating to the subject matter. The pursuer averred that this assurance had been provided in a meeting with the defender’s then-deputy chief executive, Mr Maclean, in November 2015. The defender’s position was that no such agreement had been formally created.
In his decision, Sheriff Noble began: “On the balance of probabilities, Mr Maclean did tell the pursuer that he would be given a copy of the report. It was clear from the evidence of the pursuer, his wife and, subject to a little qualification, Councillor Rose that getting the report was a condition which had to be agreed before the pursuer was willing to hand over the documentation in his and his wife’s possession.”
He continued: “I accept the evidence of the pursuer and Mrs Travers that what was wanted was a copy of the report. Getting access to the report is a somewhat vague concept which would not have satisfied the pursuer. In my view, it is highly improbable that he would have ‘buckled’ at the meeting on 18 November 2015 and agreed to hand over the documentation which Mr Maclean wanted in the absence of agreement. That does not square with his subsequent insistence that the terms of reference be agreed before he actually handed over the documentation.”
Addressing a secondary argument by the defender that there were data protection issues with handing over the report, he said: “In my view, neither the Data Protection Act 1998 nor the Data Protection Act 2018 bars the pursuer from receiving an unredacted copy of the report. In saying that, and in the absence of detailed submissions on the point, particularly from senior counsel for the pursuer, I take the relevant legislation to be the 2018 Act.”
Sheriff Noble concluded: “The report was being prepared for a worthy purpose and was a valuable document from the point of view of both the pursuer and the defender. From the pursuer’s point of view, it might shed light on the appalling victimisation that he and his family had suffered for a number of years. From the defender’s point of view, it might expose corruption and financial loss within the council (a matter also of concern to the pursuer). It is not permissible to indulge in speculation, but it is not immediately obvious that any significant personal data breaches would arise as a result of the pursuer receiving a copy of the report.”
For these reasons, the sheriff granted the pursuer’s crave for a copy of the report.