Employment Law Cases

Whistleblowing dismissal and detriment

A whistleblowing claim cannot succeed if the employer doesn’t know at least something about the substance of the protected disclosure that’s been made.

Background

Mr Nicol was Vice President of Communications and PR for WTT. His working relationship with the CEO and HR Director was fraught, chiefly around management style. When he was dismissed, he claimed unfair dismissal and detriment due to whistleblowing (under ERA 1996, s. 47B and s. 103A), claiming he had made several protected disclosures to WTT. One of the protected disclosures was made to two HR staff who’d left WTT by the time of the dismissal decision. Mr Nicol alleged that one of the HR staff communicated this fact to the CEO who had later made the decision to dismiss him. The tribunal held that Mr Nicol had not been unfairly dismissed or subject to any detriment for whistleblowing. He appealed on several grounds - one being that the tribunal had erred in finding that, for the protected disclosure to person A to count, person B must have been told some detail of it.

EAT decision

The appeal was dismissed.

There were various grounds of appeal but the interesting one was what detail a decision maker needed to know about a qualifying disclosure when it was made to one person and then passed on to another person.

The EAT went back to the basics of unfair dismissal, noting the basic requirement that what was the reason for someone’s dismissal is a ‘set of facts known to the employer ... which cause him to dismiss the employee’.

Mr Nicol argued that the content of any disclosure is entirely irrelevant to the decision maker; the only question is whether a disclosure has been made. It does not matter to the decision maker if the disclosure was a qualifying or protected disclosure or not. The EAT held that this interpretation involves a purely mechanistic application of the statutory wording, without properly appreciating that whistleblowers are intended to be protected because they have raised something of substance which Parliament has decided merits protection. For employers to be fixed with liability, therefore, they ought to know at least something about the substance of what has been made: that is, they ought to have some knowledge of what the employee is complaining or expressing concerns about. The EAT noted there was no case law on this point but said that the question was analogous to the offence of victimisation where case law has specifically held that the discriminator must have knowledge of the protected act and that such knowledge caused or influenced the discriminator to treat the victimised person less favourably than he would treat other persons.

Comment

This is a decision which appears to be ripe for appeal as it seems to leave a gap in the protection offered to whistleblowers. What about the scenario where C makes a disclosure to A. A tells B that C has blown the whistle and is going to cause the company trouble but doesn’t tell B anything about the contents of the disclosure. B then responds by dismissing C. Here B knows nothing at all about the substance of the disclosure but has surely dismissed because C has made a protected disclosure?