Kabul Evacuation Whistleblower Dismissed After BBC Interview Wins Case Against FCDO

In Ms Josie Stewart v Foreign Commonwealth and Development Office, a Foreign Office employee won her unfair dismissal claim. This came following the Employment Tribunal learning she’d been dismissed after losing her security clearance for going to the press about failures in the Afghanistan evacuation. Below, we discuss what happened to the Kabul evacuation whistleblower and the reasoning behind the Tribunal’s decision. 

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The Facts in Ms Josie Stewart v Foreign Commonwealth and Development Office

Background to Case Involving Kabul Evacuation Whistleblower

In 2015, Ms Josie Stewart (“the Claimant”) began working as a Governance Adviser for the Department for International Development in Kabul, Afghanistan. However, due to a department reorganisation, her employment was transferred to the Foreign Commonwealth and Development Office (FCDO) (“the Respondent”) by September 2020.

Between 23 August and 8 September 2021, the Claimant volunteered at the Respondent’s Afghan Crisis Centre. This centre was established to help eligible Afghan citizens relocate to the UK during the rapid Taliban takeover. Unfortunately, she explained that she witnessed several failings within the Crisis Centre and evacuation process while volunteering. 

Boris Johnson later stated, “We’ve got the overwhelming majority of those to whom we owe that debt out of Afghanistan.” The Claimant knew this statement was false, though, and it only worsened her concerns.

Claimant Talks to BBC Journalist

Between November and December, the Claimant was invited to a “lessons learned” exercise to discuss the evacuation. However, she declined her invitation and emailed the Respondent, stating this was “because of how unforgivably bad our – FCDO’s – management and response was, and the impact this had.” She added that if she had to think about what happened prematurely, it may significantly impact her mental health.

Then, on 7 December, a press report referred to evidence from Mr Raphael Marshall, a former Foreign Office employee who volunteered at the Crisis Centre. His evidence described the evacuation as “chaotic and mismanaged.” Boris Johnson and Dominic Raab subsequently responded, with the latter saying Mr Marshall’s testimony was “inaccurate.”

While high-ranking officials denied mismanaging the Afghanistan evacuation, a volunteer at the Crisis Centre privately messaged the Claimant. This individual knew a BBC journalist who had been looking for someone to corroborate Mr Marshall’s evidence. The individual asked if she’d be willing to talk.

Later that day, the Claimant contacted the journalist and provided an anonymous interview, which was aired in the evening. During the broadcast, she said, “It seemed to me that the entire operation was to manage the political fallout of what was happening rather than to actually manage the crisis…” She added, “The FCDO as an organisation was completely ill-equipped to respond…” This interview served as her first protected disclosure.

Journalist Accidentally Leaks Whistleblower’s Identity 

In January 2022, the BBC journalist contacted the Claimant again for further evidence concerning the management of the Afghanistan evacuation. This time, the journalist received pictures of two relevant emails, which served as the second protected disclosure.

Unfortunately, on 27 January, the journalist accidentally revealed the Claimant’s identity when she made the images public. This left the Kabul evacuation whistleblower feeling “terrified” about potentially losing her job. Following the leak, she received a call from the Respondent’s Departmental Security, who informed her that she had to attend a security interview in London, which took place on 31 January.

During the interview, the Claimant stated that during her BBC interview, she merely confirmed information that was already public. While she admitted to “stupidly” showing the journalist sensitive emails, she explained that she felt she had no other option.

This was because Mr Marshall had already failed to raise concerns internally and resigned. The Claimant stated, “I have experienced a culture in FCDO which silences concerns and ostracises those who raise them.”

Claimant Sacked For “Some Other Substantial Reason”

Following the security interview, the Claimant’s security clearance was suspended pending an investigation. She was also suspended on full pay until the matter was resolved.

However, on 7 February, the Kabul evacuation whistleblower learned that her high level of security clearance had been withdrawn. She was told this decision had been made because of serious concerns about her “honesty, integrity, judgment and discretion.”

The Claimant disagreed with this decision, though, so she appealed it. While she admitted some wrongdoing, she also believed there was wrongdoing on the organisation’s side. She said, “If internal avenues don’t work, then the media plays a fundamental role in democracy.” Despite this, she learned her appeal had been dismissed on 31 May.

Unfortunately, since the Claimant no longer held a high enough security clearance, she couldn’t work for the Respondent. This was communicated to her on 22 June in a letter that proposed dismissing her for “some other substantial reason” because she was no longer eligible to work within the FCDO. Before finalising this decision, though, the Respondent invited her to a meeting to discuss the matter.

The meeting took place on 6 July, but by 15 July, the decision to dismiss the Claimant because of “some other substantial reason” was made. The Claimant subsequently made two separate appeals, but both were unsuccessful. In the meantime, on 12 July, she initiated employment tribunal proceedings, claiming detriment on the grounds of making a protected disclosure and unfair dismissal.

The Employment Tribunal’s Judgment

Following proceedings, the Employment Tribunal considered whether the Claimant had made a protected disclosure. 

Did the Kabul Evacuation Whistleblower Have a Qualifying Belief?

First, it had to determine whether the Kabul evacuation whistleblower had a qualifying belief and whether it was reasonable. At this stage, it noted that her statements during the anonymous interview pertained to a belief concerning potential threats to health and safety, as the lives of individuals who had cooperated with NATO forces were at risk. If the Respondent had mishandled the evacuation, those individuals would have been exposed to danger. As a result, the Tribunal ruled she had a belief concerning a qualifying disclosure that was reasonable.

Then, the Tribunal had to consider whether the Claimant believed she had made the disclosure in the public interest. It held she did since Mr Marshall’s evidence had already been published, meaning there was a genuine public interest in the evacuation—not to mention the potential lives at stake. Again, the Tribunal found this belief was reasonable.

Tribunal Rules Anonymous Interview Constituted a Protected Disclosure

With this in mind, the Tribunal questioned whether her disclosure was made:

  • With the reasonable belief that it was substantially true
  • For personal gain
  • With the reasonable belief, she would be subject to a detriment if she made a disclosure to her employer
  • Reasonably, with account for who the disclosure was made to, its seriousness, and the likelihood of the relevant failure continuing in the future

Considering the above, the Tribunal ruled the Kabul evacuation whistleblower held a reasonable belief that her disclosure was substantially true because it was based on events she’d witnessed. Furthermore, it stated the disclosure wasn’t made for personal gain but was influenced by the fact she felt she couldn’t go to her employer. This was because Mr Marshall had already tried to do so and resigned.

Concerning the last point, the Tribunal stated it was reasonable to contact the BBC since the contents of the anonymous interview were already public knowledge. Moreover, the matter related to potentially endangered lives and, if not dealt with, future lives, meaning the disclosure satisfied the seriousness and relevant failure continuing requirements. 

With the anonymous interview satisfying all relevant requirements, it was deemed a protected disclosure. The same didn’t apply to the images of sensitive emails, though, since this disclosure failed at the first hurdle in not constituting a qualifying belief.

Claimant Subjected to Detriment When Security Clearance was Revoked

After the Tribunal determined the Claimant had made a protected disclosure, it outlined the laws protecting whistleblowers, namely, Section 47B of the Employment Rights Act 1996. This section of legislation sets out that an employer mustn’t subject an employee to a detriment because they’ve made a protected disclosure.

In her claims, the Kabul evacuation whistleblower alleged she was subject to such detriment when she was suspended and had her security clearance revoked. With regard to the suspension, however, the Tribunal held this didn’t amount to a detriment. This was because any time a “leak” occurred, the Respondent would suspend those involved to investigate. Consequently, the suspension didn’t occur specifically because of a protected disclosure.

That said, the Tribunal believed the removal of the Claimant’s security clearance was a detriment. This was because the Respondent said, “You made conscious decisions to make unauthorised disclosures of classified (Official Sensitive) information to a journalist and to participate anonymously in a Newsnight interview” when reasoning its security clearance decision. Since the interview was found to be a protected disclosure, a qualifying detriment was, therefore, found.

Ordinary Unfair Dismissal Claim Succeeds

Finally, the Tribunal had to assess the claims concerning unfair dismissal. It began by assessing whether automatic unfair dismissal due to making a protected disclosure had occurred. However, since the primary reason for dismissing the Claimant was that there were no roles she could undertake at her new security clearance, not her protected disclosure, this was quickly dismissed.

As a result, the Tribunal turned to the claim of ordinary unfair dismissal. Here, it explained that the Respondent had failed to undertake a fair process since it didn’t consider her disclosure and whether it was protected. Because of this, the Claimant’s status as a whistleblower was never considered, and her dismissal was deemed unfair.

Overall, the Kabul evacuation whistleblower won her claims of ordinary unfair dismissal and detriment on the grounds of making a protected disclosure with regard to the withdrawal of her security clearance. Remedies for her successful claims will now be determined at a future hearing.

Tribunal’s Decision Sparks Support for Whistleblower Rights

Following the Tribunal’s decision, a spokesperson at Protect, “the UK’s whistleblowing charity”, provided a statement. Elizabeth Gardiner, Chief Executive at Protect, said, “We warmly welcome the Tribunal’s decision… Whistleblowers are essential to good government…” She added, “This decision has weighty repercussions for how civil servants can act in the future and their confidence in speaking out when they encounter wrongdoing.”

A BBC spokesperson also apologised to the Kabul evacuation whistleblower following the Judgment’s release. They said, “We take our responsibilities as journalists very seriously, and we deeply regret that the name of the email account was inadvertently revealed when the email was published on social media.”

Get Help From Redmans

If you have queries regarding whistleblowing in the UK or want to understand the rights protecting whistleblowers, contact Redmans Solicitors. It may be that you’ve made a protected disclosure and suffered a detriment as a result. By getting in touch, our employment law specialists can assess your circumstances, provide expert advice, and help resolve your situation.

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