Scrase Law Employment Solicitors

Whistleblowing and automatic unfair dismissal

A dismissal of an employee is automatically unfair if the reason (or the principal reason) for the dismissal is that the employee made a ‘protected disclosure’.  This is commonly referred to as whistleblowing.  In the event of a claim, it will be for the Tribunal to consider what facts or belief caused the decision maker to decide to dismiss.

Background

Mr N raised concerns about his employer’s CEO in an email to two HR consultants engaged by the employer.  One of the HR consultants told the CEO that complaints had been made about her management style.  Mr N’s employment was later terminated by the CEO, purportedly due to redundancy.

Mr N issued claims in the Employment Tribunal against his employer, the employer’s CEO and the employer’s director of HR.  Mr N claimed that his dismissal was automatically unfair and that he was subjected to a detriment on the grounds of having made protected disclosures.

The Tribunal found that there was no genuine redundancy, and that this as used as a cover for the breakdown in the relationship with Mr N.  However, it found that Mr N had not been unfairly dismissed or subject to detriment as a result of making protected disclosures.  The Tribunal found on the facts that although the protected disclosures in the email had been communicated to the CEO, they had not been communicated to her in sufficient detail so that she was aware of a protected disclosure having been made. 

What was the reason for dismissal?

Mr N appealed to the Employment Appeal Tribunal (EAT).  He argued that as long as a protected disclosure had been made to the HR consultants, and the CEO knew that a disclosure had been made, the CEO did not need to know the detail of what had been disclosed.  The only question is whether a protected disclosure has been made.

The EAT did not agree.  It found that for employers to be fixed with liability they ought to know at least something about the substance of what has been alleged.  It is not enough that the decision maker was aware that a disclosure had been made.  The decision maker needed to be aware of some of the detail of what had been disclosed. 

Comment

The fact that an employee makes a protected disclosure and is dismissed will not always mean that the dismissal is automatically unfair.  Generally, a Tribunal will look at the motivation of the person making the decision to dismiss when deciding the reason for dismissal.   This judgment provides clarification that the decision maker must have some knowledge of the substance of the disclosure.  This requires more than the simple knowledge that a disclosure has been made.

The situation may be different, however, where the decision maker has no knowledge at all that a protected disclosure has been made and another person manipulates the situation to deceive the decision maker into acting in a certain way.  In that situation, an employer may be found liable for automatic unfair dismissal. 

Nicol v World Travel and Tourism Council and others

21 May 2024

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©2024 SCRASE LAW LTD. THIS POST IS FOR GENERAL INFORMATION ONLY AND IS NOT ADVICE. YOU ARE RECOMMENDED TO SEEK PROFESSIONAL ADVICE BEFORE TAKING ANY ACTION ON THE BASIS OF THIS POST