Josie Stewart was a FCDO civil servant who worked in its Afghan Crisis Centre during the evacuation from Kabul in August 2021.
In December she gave an anonymous interview to BBC Newsnight, corroborating evidence given to the Foreign Affairs Committee of the House of Commons by Raphael Marshall, a fellow Crisis Centre worker – that had been disputed by the government. She said that the chaotic UK evacuation had caused trauma, suffering and probably loss of life.
Ms Stewart later leaked internal FCDO emails to the BBC suggesting Boris Johnson had lied about his involvement in prioritizing staff of the Afghan animal charity, Nowzad, for evacuation.
The BBC mistakenly identified her as the leaker. She was immediately suspended and had her security clearance removed. She was subsequently dismissed because of a FCDO policy that all staff required security clearance.
Ms Stewart brought an Employment Tribunal claim arguing that the removal of her security clearance and subsequent dismissal breached the public interest disclosure protections given to whistleblowers under the Employment Rights Act.
The Tribunal has found that the interview was a qualifying public interest disclosure under the Act, concluding that it was …reasonable for her to go to the UK’s public service broadcaster when the relevant information and/or allegations had been already been put into the public domain (by Mr Marshall) and government ministers were publicly disputing them. The leaking of the emails was not, however, a qualifying disclosure.
It found that the withdrawal of her security clearance was unlawful, as a detriment imposed on her because she made the qualifying disclosure.
It did not accept that the reason or principal reason for her dismissal was that she had made the qualifying disclosure so that the dismissal was not “automatically” unfair under s.103A of the Act.
But it decided that it was an unfair dismissal under s.98 of the Act. The employer had acted unreasonably in dismissing her, having failed to engage in any way with her case that she was a whistleblower – and because it had refused to consider whether she could be employed without security clearance.
The judgment is important both as recognition that civil service whistleblowers can be protected under the Act, and that disclosing in the public interest to the media may amount to a qualifying disclosure under the Act.
Gavin Millar KC and Darryl Hutcheon represent Ms Stewart instructed by James and West Law LLP.
Read the full judgment here.