Whistleblowing - A Useful Reminder for Employers

Secure Care UK Ltd v Mott

Mr Mott worked for Secure Care UK Limited (Secure Care) as a Logistics Manager from 6 July to 13 November 2018. Whilst employed, he made a number of complaints to Secure Care about staff shortages, long working hours, rest breaks and other staffing difficulties, which he said endangered health and safety. Secure Care subsequently dismissed Mr Mott by reason of redundancy.

Mr Mott brought a tribunal claim for automatic unfair dismissal, arguing that he had been selected for redundancy because he had made protected disclosures.

The Employment Tribunal (ET) Decision

The ET held that the following were protected disclosures:

• Mr Mott emailed several people including a senior manager asserting that certain shift arrangements were not possible, as the staff would not have adequate rest breaks.
• Mr Mott expressed his unhappiness when he was informed a number of company posts would have to be cut and Mr Mott emailed a senior manager informing them that the control room objectives could not be met with the reduced staffing numbers.
• Mr Mott was instructed by a senior manager to inform a client that they had available cover for an assignment when this was untrue. Mr Mott told that manager he was very unhappy about this and that Secure Care was in breach of the Care Quality Commission Regulations, health and safety law and the Working Time Regulations. Mr Mott said that the health and safety of patients and staff was in danger, and he threatened to contact the Care Quality Commission and the Information Commissioner.

The ET accepted that there was a genuine redundancy situation in September 2018, but considered that Mr Mott "…raising his concerns about the staffing levels and their impact had a more than trivial impact on the decision to provisionally select him for redundancy.” The ET concluded that Mr Mott's dismissal was automatically unfair.

The EAT Decision

Secure Care appealed the decision. The EAT found that the ET had erred on two counts:

• First, the ET had applied the wrong legal test in the case. Instead of considering whether the protected disclosures 'materially influenced' the Secure Care's treatment of Mr Mott (which should only be used for claims for whistleblowing detriment, short of dismissal), the ET should have considered whether the protected disclosures were the 'sole or principal reason' for dismissal.
• Second, the ET failed to confine its consideration to the effect of just the three identified protected disclosures. Instead, the ET considered the combined impact of all nine disclosures alleged by Mr Mott.

As a result the case was remitted to the employment tribunal.

Best Practice

This case is a useful reminder of the test for causation that will be applied in claims for automatic unfair dismissal as a result of making a protected disclosure - the protected disclosure(s) must be the sole or principal reason for dismissal. These cases are complicated and employers should always seek legal advice when conducting business reorganisations, particularly where an affected employee has raised grievances which may amount to protected disclosures.

For more information please contact Ellie Boyd in our Employment Law team on 020 7665 0940, or complete the form below.