Whistleblowing dismissals: what does the decision-maker need to know?

EAT: decision-maker must have some knowledge of the whistleblower’s concerns

It is automatically unfair to dismiss an employee because they have made a protected disclosure or “blown the whistle”.

The compensatory award for ordinary unfair dismissal claims is capped at the lower of £115,115 and one year’s gross pay for the claimant. But it is important to note that there is no financial cap on compensation where a dismissal is found to be because of a protected disclosure. Where an employee’s losses are likely to be significant, a finding of automatic unfair dismissal for whistleblowing can therefore be particularly costly for employers.

What is a protected disclosure?

For a disclosure to be protected:

• the employee must make a disclosure of information;

• that information must relate to one of six types of wrongdoing set out in the legislation, including that someone has breached or is likely to breach a legal obligation, or that someone's health and safety is or likely to be endangered;

• the employee must have a reasonable belief that the information disclosed tends to show one of the listed types of wrongdoing;

• the employee must have a reasonable belief that the disclosure was made in the public interest; and

• the disclosure must be made to one of the categories of person set out in the legislation.

When will a dismissal be “because of” a protected disclosure?

For a dismissal to be automatically unfair in this context, there must be a causal link between the whistleblowing and the decision to dismiss. The employment tribunal will determine the facts or beliefs which caused the decision-maker to decide to dismiss, enquiring into the real reason which operated in the decision-maker’s mind when making the decision.

Court of Appeal case law has clarified that it does not matter whether the employer genuinely believes that the disclosure was not protected(Beatt v Croydon Health Services NHS Trust). If the disclosure is found to be protected by the tribunal and the dismissal was because of the disclosure, the dismissal will be automatically unfair.

In some cases, employers will seek to defend such a claim on the basis that the person who made the decision to dismiss did not have any knowledge or sufficient knowledge of the disclosure such that it was the reason or principal reason for the dismissal.

Case law shows that there are very limited circumstances where whistleblowing protections will apply where the decision-maker does not have knowledge of the disclosures. This can happen where a person in the hierarchy of responsibility above the employee manipulates or deceives the decision-maker because the employee has blown the whistle. For more details please see our article from 2020 covering the Supreme Court case of Royal Mail Group Ltd v Jhuti: Unfair dismissal: whose reason is it anyway? (available on our website).

A recent case in the EAT sheds light on what the decision-maker needs to know before a dismissal can be found to be because of a protected disclosure and so automatically unfair.

Case details: Nicol v World Travel and Tourism Council

Mr Nicol commenced employment with World Travel and Tourism Council (WTTC) as Vice-President of Communications and PR in May 2019. In June 2019, Mr Nicol raised concerns with the CEO about her communications with junior employees, stating these could lead to legal challenge and damage the reputation of WTTC. Separately, allegations were made by another colleague against Mr Nicol.

A staff survey and staff workshops were undertaken by HR consultants which revealed concerns among staff about the CEO’s management style. Mr Nicol also raised his concerns about the CEO with the HR consultants by email on 27 August referring to a potential breach of a legal obligation in relation to the treatment of a junior colleague and a culture of bullying and harassment. One of the HR consultants informed the CEO on 3 September 2019 that complaints had been made about her management style but she made no direct reference to the email of 27 August.

The CEO informed the HR consultants that she wished to terminate Mr Nicol’s employment in relation to allegations against him.  Following failed settlement discussions, Mr Nicol was dismissed on the ground of redundancy on 14 October 2019. He brought claims of automatic unfair dismissal and detriment as a result of making protected disclosures. These claims were dismissed by an employment tribunal.

The tribunal found the email of 27 August to be a protected disclosure. However, it found that the contents of the email were not communicated to the CEO in sufficient detail so that she was aware of a protected disclosure having been made. Mr Nicol appealed against this decision to the Employment Appeal Tribunal, along with a number of other grounds of appeal. He argued that there was no need for the detail of the email to have been communicated to the CEO by the HR consultants; it was sufficient that the CEO knew he had made a disclosure for it to be the reason for dismissal and so for the dismissal to be automatically unfair.

Dismissing the appeal, the EAT determined that the tribunal was right to conclude that insufficient detail had been communicated to the CEO in relation to this email for it to form the basis of an automatic unfair dismissal claim. It commented that it could not be right for employers to be liable if the decision-maker knows only that a disclosure has been made but has no knowledge of what the employee was expressing concerns about.

The EAT made clear that this was not a case such as Jhuti where the decision-maker had been manipulated or deceived by someone else into making a decision to dismiss and so the tribunal could “penetrate through the invention” and attribute the requisite knowledge to the dismissing person.

The EAT also made clear that there is no need for the decision-maker to know or believe that the disclosure is a protected disclosure for protections to apply. However, it is necessary for the decision-maker to have some knowledge of the substance of the concerns expressed.

Comment

In claims of this kind, tribunals will examine evidence as to what was in the mind of the person making the decision to dismiss in order to determine whether the protected disclosure was the reason or, where there is more than one reason, the principal reason for dismissal. 

Where an employee has raised concerns which might be protected disclosures it is particularly important to ensure that the reason or reasons for dismissal are well evidenced and documented, as this will assist an employer in showing that the reason for dismissal was not the unlawful reason.

In this case, the employee did not have two years’ service and so was not able to bring an ordinary unfair dismissal claim. Employers should be aware that claims for unfair dismissal because of protected disclosures can be brought at any time during employment. It is therefore advisable to take an employee through a fair and well documented process before moving to dismissal no matter when they commenced employment. Following a fair process which complies with the employer’s own policies and (for conduct dismissals) with the Acas Code of Practice on Disciplinary and Grievance Procedures will help to lower the risk and potential financial impact of successful claims.