Dismissal of 'whistleblower' is not automatically unfair if decision-maker did not know the content of the protected disclosure

What is whistleblowing?

Whistleblowing is where an employee or worker makes a 'qualifying disclosure' of wrongdoing at work, which they reasonably believe to be in the public interest.

If an employee is dismissed because they have 'blown the whistle', this will be considered automatically unfair under s103A of the Employment Rights Act 1996. There is no qualifying minimum period of service and no upper limit on compensation for this claim. Furthermore, both employees and workers have protection to not be subjected to detriment on the grounds that they have made a protected disclosure under s47B of the Employment Rights Act 1996.

What were the facts of this case?

In the case of Nicol v World Travel and Tourism Council, the claimant raised concerns about the CEO of the respondent. He emailed two HR consultants engaged by the respondent in order to raise these concerns. One of the HR consultants subsequently told the CEO that there had been complaints about her management style, including that the claimant had concerns about the departure of a colleague and the CEO's use of WhatsApp.

The claimant's employment was subsequently terminated. The reason given for the termination was redundancy, although this was found to be a sham. The Tribunal found the real reason for terminating the claimant's employment was the breakdown in the working relationship.

The claimant argued that his dismissal was automatically unfair because it was a result of the protected disclosures he had made in the course of his employment. He also argued he had been subject to detriment as a result of whistleblowing. The claim was dismissed by the Employment Tribunal - the claimant then appealed to the Employment Appeal Tribunal (EAT).

EAT decision

The EAT rejected the claimant's appeal. Whilst he had made a protected disclosure to the HR consultants, the CEO (who ultimately took the decision to dismiss) was not sufficiently aware of the detail of the claimant's complaint, for the decision to dismiss to be wholly or principally motivated by the protected disclosure.

Learning points

This decision provides authority that the decision-maker in a whistleblowing case must be sufficiently motivated by the whistleblowing to dismiss the employee in order to be liable for automatically unfair dismissal. This authority is likely to also apply to claims for detriment as a result of whistleblowing.

For more information or advice, please contact Ellen Netto in our Employment team on  0117 314 5377, or complete the form below.