EAT remits whistleblowing detriment claim after errors in tribunal’s reasoning

Background

In the case of Bibescu v Clare Jenner Ltd t/a Jenner’s, the claimant was employed as an accountant from 2018 until her dismissal in June 2020.

During her employment, the employer had raised concerns about the quality of her work and had arranged for some of her work to be reviewed by a subcontractor. The claimant objected to this arrangement and investigated the subcontractor’s professional status and company records.

She raised concerns with her employer that the subcontractor appeared to be disqualified from acting as a company director and was not a member of the relevant professional body. Three days later, the claimant was dismissed.

Because she did not have sufficient service to bring an ordinary unfair dismissal claim, she brought claims for automatic unfair dismissal for whistleblowing and for detriment on the ground of whistleblowing.

The tribunal dismissed the claims, concluding that the disclosures were not made in the public interest and that the real reason for dismissal was the claimant’s performance and working relationship issues.

EAT decision

The EAT dismissed the appeal in relation to automatic unfair dismissal.

The tribunal had correctly directed itself that it needed to identify the principal reason for dismissal. Its conclusion that the dismissal was due to performance concerns and workplace conflict was a finding of fact that was open to it on the evidence, particularly given the documented concerns about the claimant’s work before the disclosures were made.

However, the EAT held that the tribunal had made errors when analysing the whistleblowing detriment claim. In particular, it had failed to make clear findings about the claimant’s belief that her disclosures were in the public interest.

The correct legal test requires the tribunal to consider whether the worker genuinely believed the disclosure was in the public interest and, if so, whether that belief was reasonable. Instead, the tribunal appeared to substitute its own view of the situation and focused on whether wrongdoing had actually been established.

Because of these errors, the detriment claim had not been properly determined.

Learning points for employers

This case illustrates the different legal tests that apply to whistleblowing claims. For automatic unfair dismissal, the tribunal must identify the principal reason for dismissal. By contrast, detriment claims require consideration of whether a protected disclosure materially influenced the employer’s treatment of the employee. The decision also serves as a reminder that tribunals must assess whistleblowing disclosures from the perspective of the worker’s belief at the time, rather than substituting their own view of whether wrongdoing actually occurred.

For more information or advice please contact Sharmin Chowdhury or your usual contact within our Employment team.