Is it possible to dismiss whistleblowers for the way in which they make ‘protected disclosures’ to their employers? The answer is yes, but be very careful.
Over the last few years there has been a series of cases on how employers should deal with ‘unmanageable’ people. It is accepted that, even if someone makes protected disclosures, they will not be immune from disciplinary action if the way they made those disclosures was unacceptable. The Employment Appeal Tribunal (EAT) has given the examples of racist or abusive language and threats of violence. One of the most illustrative cases is that of Panayiotou v Kernaghan where a police officer was held to be protected when making his many disclosures but not when he insisted on stating how they should be dealt with. His actions were ‘sufficient to try and to exhaust the patience of any organisation’.
Employers must be able to show that their grounds for the disciplinary action are genuinely separable from the making of the protected disclosure itself. For example, in one case it was insufficient for the employer to say that, because there had been so many disclosures, trust and confidence had broken down so as to justify dismissal.
Perhaps the best summary of the fine balance that exists is still found in the 2011 case of Martin v Devonshires Solicitors:
‘employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. [Employers should not take action] simply because in making a complaint [an employee] had, say, used intemperate language or made inaccurate statements. An employer who proposes to object to ‘ordinary’ unreasonable behaviour as that kind should be treated as objecting to the complaint itself'.
A case last month (Gibson v Hounslow LBC) covered a teacher who had made genuine complaints about the treatment of a child. She was nevertheless fairly dismissed because she was ‘extremely difficult to manage from the very beginning and quite independently from any disclosures..it was her un-governability that led to the treatment complained of and the antipathy towards her, not the disclosures’.
Yes you can dismiss whistleblowers for the way in which they blow the whistle, but please be careful.
