An ex-Foreign Office civil servant who lost her job after blowing the whistle on the department’s handling of the 2021 evacuation of Kabul has won her case for unfair dismissal.
The Employment Tribunal said the Foreign, Commonwealth and Development Office unlawfully removed Josie Stewart’s security clearances and unfairly dismissed her in 2022 after she told BBC Newsnight about the department’s handling of the Afghanistan crisis.
In the first case of its kind, the Employment Tribunal ruled that, under whistleblower protection legislation, it can be lawful for a civil servant to share unauthorised information directly with the media.
The tribunal said it was “reasonable for the claimant to go to the UK’s public service broadcaster when the relevant information and/or allegations had already been put into the public domain… and government ministers were publicly disputing them”.
It added: “Was the claimant’s belief that she made the disclosure in the public interest a reasonable belief? The tribunal found that it was. The prime minister and foreign secretary were denying things that the claimant believed to be true, based on what she had observed in the course of her work.”
Stewart said the judgment has achieved her goal of establishing that civil servants "have the right not to stay silent when systemic failures put lives at risk”.
“My experience of the FCDO crisis centre in August 2021 reflected the worst of our political system,” she said. “By calling this out, I lost my career. The outcome of this case doesn’t change any of this, but it has achieved what I set out to achieve: it has established that civil servants have the right not to stay silent when systemic failures put lives at risk, as happened during the Afghan evacuation.
“I hope that, knowing that their colleagues have this right, senior officials will do more to build accountability in government, and speak truth to power when it is needed. We can’t have a system that says stay silent, no matter what you see, and forces dedicated public servants to choose between their conscience and their career.”
She added: “I am profoundly grateful to my incredible legal team, who’ve worked pro bono for years because they saw the landmark implications of this case.”
Stewart’s solicitor, Cathy James, said the ruling was an “important win” not just for Stewart, but for “civil servants, the public interest, and democracy”.
The FCDO’s counsel had argued that whistleblowing rights do not extend to granting security clearance to those with a record of leaking, but Stewart’s barrister said that if this argument succeeded it would “drive a coach and horses through” the Public Interest Disclosure Act 1998 aimed at protecting whistleblowers, according to the Guardian.
Stewart told the tribunal that she contacted the BBC to confidentially corroborate claims from another whistleblower, Raphael Marshall, who described the FCDO’s handling of the evacuation as "chaotic" in evidence to the Foreign Affairs Select Committee.
Stewart said she had become concerned by statements from the then-foreign secretary, Dominic Raab, then-prime minister Boris Johnson and perm sec Philip Barton, defending the FCDO’s handling of the evacuation. This included Raab describing Marshall’s testimony as “inaccurate” and Johnson saying the claim that he intervened to prioritise animal charity Nowzad was “complete nonsense”.
She also described reading media comments which suggested that Marshall's evidence was just "one person" and a "relatively junior official", and that it was a case of "his word against Mr Raab's".
Stewart's correspondence with Kotecha was accidentally made public when the journalist tweeted two images of emails that Stewart had sent regarding the Nowzad decision, which showed enough of her email address to identify her. The department suspended Stewart while it reviewed her security clearance, subsequently removed her clearance and then dismissed her as her lack of clearance meant there were “no roles available at any appropriate grade”.
The tribunal found that the department had failed to consider Stewart’s case that she had made protected disclosures and so should be regarded as a "whistleblower". It said her dismissal was therefore unfair as “no reasonable employer, acting reasonably, could base a decision to dismiss an employee in the claimant’s position on a process which failed to engage in any way with the case that she was putting forward”.
On the other hand, it said the initial decision to suspend her while it reviewed her security clearance was “unavoidable”.
Commenting on the judgment, Elizabeth Gardiner, chief executive of whistleblowing charity Protect, said: “We warmly welcome the tribunal's decision in Josie Stewart’s case, which has far reaching implications for the civil service.
“We need whistleblowers to raise matters in the public interest and this case is unusual and hugely significant in finding that a civil servant was justified in going to the press.
“Whistleblowers are essential to good government and challenge is vital in holding organisations to account. This decision has weighty repercussions for how civil servants can act in the future and their confidence in speaking out when they encounter wrongdoing.”
Gardiner added: “However, we still need to close the gap between the value whistleblowing brings in exposing wrongdoing, and the lack of protections for those civil servants who speak up. If, like in this case, the department is not listening, civil servants have no option but to go to the press. The only way we can ensure civil servants can raise concerns safely is by introducing an independent statutory commissioner with broad powers to investigate whistleblowing in the civil service.”
An FCDO spokesperson said: “We will review the findings of the tribunal and consider next steps."