A debate has long taken place in the higher tribunals and courts as to whether an employee is being dismissed for making a protected disclosure (‘blowing the whistle’), or for the unacceptable manner in which they did so.
In September last year we reported on the case of Kong v Gulf International Bank (UK) Limited. The Employment Appeal Tribunal (EAT) analysed a situation in which the head of financial audit at the bank criticised a document prepared by the head of legal. The head of audit pointed out legitimate legal failings in the document and as such made protected disclosures. However, in doing so, she made explicit and unnecessary personal criticisms that greatly upset the head of legal. For this reason, the head of audit was dismissed. The EAT held that her dismissal was unrelated to her protected disclosures, but rather it was for the manner in which she made those disclosures.
Last month the case came to the Court of Appeal (CA). The whistleblowers charity Protect ‘intervened’ in the appeal and made some interesting submissions. Protect argued that someone who is on the receiving end of a protected disclosure is very often upset. To use that as a justification for dismissal would seriously undermine the protection given to whistleblowers.
The CA analysed the line of key cases and identified that is always necessary to establish the ‘real reason’ for the dismissal or other detriment. Is that reason the protected disclosure itself or, under the ‘separability principle’, the manner in which it is made? This consideration is an essential exercise to be carried out by the tribunal in every case.
Sometimes it will be obvious, for example where the disclosure involves racial abuse, violence or phone calls made unnecessarily in the middle of the night. In other cases, it will be much harder to make the distinction. For example, it may even be possible to subject people who have made protected disclosures to a detriment when their conduct is blameless, if the resulting situation is a dysfunctional workplace that cannot not be restored without relocating the whistleblowers. The latter is an extreme example and will require particularly close scrutiny.
Ultimately the decision as to the real reason (or in the words of the statute where there is a dismissal, the ‘principal reason’) will involve an analysis of the ‘wide spectrum of human conduct’. There is no set objective standard by which to judge this. There is not, as was once thought, any rule that conduct justifying disciplinary action has to be ‘something beyond ordinary reasonable misconduct’. Instead, there is a simple question: what is the reason in the mind of the decision maker?
The CA observed that the argument from Protect misses the point. Yes, whistleblowers are often ‘an irritant or thorn in the employer’s side’ and do cause upset. An employer can look at the upset, but its focus must be on the whistleblower’s conduct, the relevance of the upset only being that it is evidence of the nature of this conduct.
In summary, the CA cut to the core of the situation – what was the real reason for the dismissal: the disclosure itself, or the manner in which it was made? This will be ‘a matter of common sense and common justice’. In practice, an employer looking to dismiss an employee who is making protected disclosures should make sure it can point to obviously unacceptable conduct around those disclosures or in their making. Conversely, an employee should be careful to conduct themselves appropriately when blowing the whistle.
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