Whistleblowing protection - the employer’s reasoning

Posted: 25/11/2021

Two months’ ago, in the case of Kong v Gulf International Bank, we reviewed a case where the Employment Appeal Tribunal (EAT) had to consider whether the ‘protected disclosure’ of a whistleblower was the reason for her dismissal. The EAT found that even though her protected disclosure was the reason for the poor treatment she received from a head of department, it was not the reason for her dismissal. Instead, her dismissal was because of her conduct towards her colleagues. In the case of Secure Care UK Ltd v Mott, the EAT has had to clarify the two different tests applied to an employer’s reasoning when:

• an employee suffers a detriment because of their whistleblowing; and
• an employee is dismissed because of their whistleblowing.

When it comes to detriment cases, the test is more employee friendly. It reflects discrimination law and is based on the reasoning that detriments towards whistleblowers should not be tolerated. If an employee’s whistleblowing ‘materially influences’ the employer’s decision to subject them to a detriment, then protection will apply.

Conversely, when it comes to a dismissal of a whistleblower, tribunals move into ‘the general run of unfair dismissal law’. An employee will only be protected from an automatic unfair dismissal on account of having blown the whistle if their protected disclosure was the ‘principal reason’ for their dismissal.

The logic here can be seen in situations where someone blowing the whistle is being investigated for misconduct, or is perhaps at risk of redundancy. Their ‘protected disclosure’ might well influence some of the decision making in the misconduct or redundancy process. However, the employee will only gain protection from automatic unfair dismissal as a whistleblower if their protected disclosure was the principal reason for the dismissal. If they were being dismissed primarily for other reasons, the protection will not apply. In Secure Care UK Ltd v Mott, a logistics manager for a company providing transport for NHS patients was at risk of redundancy, and had blown the whistle about staffing levels and staff and patient safety. The employment tribunal (ET) judge applied the wrong test for the claimant’s dismissal, and found it to be automatically unfair based on her view that his whistleblowing had materially influenced the decision to dismiss him. The decision in favour of the employee was set aside by the EAT. The EAT also said that the ET had erred in considering whether his dismissal resulted from all of the complaints the claimant had made to his employer. The only relevant complaints in a whistleblowing claim are the ‘protected disclosures’ made by an employee that qualify for whistleblower protection, not more general grievances.

Employers are often faced with individuals making protected disclosures when they realise their employment is at risk. The employer should ensure that the dismissal is grounded on fair and objective reasons unrelated to the disclosures. Conversely, employees seeking to make a whistleblowing dismissal claim should ensure that they have made clear protected disclosures, for example about legal wrongdoing, and can provide evidence that supports these as being the principal reason for their dismissal.

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