Employment Law Cases

William v Lewisham and Greenwich NHS Trust

In whistleblowing detriment claims, a tribunal should not look behind the motive of the decision maker to consider whether a third party was manipulating the situation.

The applicable law is as follows:

• Workers can claim that they have been subjected to any detriment by an act or omission by their employer on the ground that they made a protected disclosure (ERA 1996, s 47B).
• An employee is automatically unfairly dismissed if the reason or principal reason for dismissal is that the employee made a protected disclosure (ERA 1996, s 103A).

Background

Ms William worked as a consultant paediatrician and neonatologist. Her working relationship with another consultant was fractious. This led to a complaint by Ms William about her colleague; that she’d failed to do a proper handover. Ms William was given a warning because her manager believed she’d failed to provide accurate information about the incident. Ms William brought a claim under s 47B that she’d been subjected to detriments because she made a protected disclosure. A tribunal rejected her complaint. While the disclosure was a protected one, her s. 47B claim failed because her employer’s detrimental decisions were not materially influenced by the handover disclosure. Ms William appealed. One of her grounds of appeal was that the tribunal should have applied the Supreme Court judgment in Royal Mail v Jhuti – that even if the decision maker in her case wasn’t directly motivated by the protected disclosure, they were manipulated by people who were motivated by the disclosure.

EAT decision

The appeal was dismissed.

The Jhuti case was an automatic unfair dismissal claim under s. 103A and was not relevant to a s. 47B detriment claim. There was no reason to depart from existing EAT authority (Malik v Cenkos Securities) that if an individual decision maker did not know of a protected disclosure, the knowledge and motivation of a third party who influenced the decision maker cannot be attributed to the decision maker.

Comment

This decision clarifies the law on causation in whistleblowing detriment claims. It confirms that the EAT’s earlier decision in Malik remains good law despite the Supreme Court’s decision in Jhuti. This is because Jhuti was specifically about unfair dismissal claims rather than detriment claims.