EAT dismisses respondent's appeal in whistleblowing case
The Employment Appeal Tribunal (EAT) upheld a previous tribunal decision that the claimant was dismissed after she made protected disclosures relating to a colleague's drug use, rejecting the respondent's argument that she was dismissed for previously addressed conduct issues.
Background
The claimant worked as a Family Support Worker for respondent's care company, providing services to vulnerable families. She claimed to have made two protected disclosures regarding a colleague’s alleged drug use and "chaotic" lifestyle. The first disclosure was made in August 2022 to her deputy manager, and the second in September 2022 to an independent visitor, AC, who was responsible for reporting safeguarding concerns to the respondent and OFSTED.
The claimant's employment was terminated on the same day as her meeting with AC. She was dismissed without notice after being called into a meeting that she was not told would be a disciplinary hearing and not given an opportunity to answer the allegations made against her.
The respondent cited reasons such as incorrect medication recording, leaving the premises without authorisation, and failing to follow guidance. However, the claimant argued that the real reason for her dismissal was her whistleblowing.
A majority in the employment tribunal found in the claimant's favour, determining that she had a reasonable belief her disclosures highlighted risks to health or safety, and that her dismissal was directly linked to these protected disclosures, rather than the reasons given by the respondent. The respondent appealed.
EAT's decision
The EAT dismissed the appeal, rejecting arguments that the tribunal’s conclusions were perverse or inadequately reasoned. It found that the tribunal had conducted a careful analysis of the evidence and provided sufficient reasoning for its conclusions.
The EAT confirmed that the claimant’s disclosures met the threshold for whistleblowing protection. Her concerns about a colleague’s drug use, particularly in a setting involving vulnerable service users, were reasonably believed to be in the public interest and to raise health and safety risks.
Importantly, the EAT upheld the tribunal’s finding that the respondent’s stated reasons for dismissal were not credible. For example, issues relating to medication recording had previously been addressed as a training matter and did not justify summary dismissal. The tribunal was therefore entitled to conclude that the dismissal was, in reality, a reaction to the claimant’s disclosures.
The respondent also argued that the tribunal’s findings were not rationally supported and that insufficient weight had been given to inconsistencies in the claimant’s account. The EAT rejected this, emphasising that tribunals are entitled to prefer one witness’s evidence over another where properly reasoned and appellate courts will only interfere where findings are perverse, which sets a high threshold.
The tribunal had considered the evolution of the claimant’s evidence but accepted her explanation, noting her status as a litigant in person. It was also relevant that the respondent had not called key witnesses or disclosed potentially important documents, including the independent visitor’s report.
In addition, both the tribunal and the EAT found that the respondent’s handling of the claimant’s appeal amounted to a further detriment linked to her whistleblowing. The respondent failed to engage meaningfully with the appeal or investigate the allegations raised, which reinforced the conclusion that the dismissal decision was tainted.
Learning points for employers
This case serves as a reminder handling whistleblowing matters with care. It reinforces the importance of contemporaneous documentation. The absence of records, such as notes of key meetings or reports, can significantly weaken the employer’s position.
Additionally, appeals are not just a procedural formality, they are an opportunity to correct previous mistakes and can become a further detriment if mishandled.
Employers should establish clear and effective whistleblowing policies that encourage employees to report concerns in a safe and supportive environment. Proper training for managers and HR teams is essential to ensure that disclosures are handled appropriately and that employees are not penalised for raising issues.
For support or advice, please contact Eleanor Searle in our Employment team.
