10 August 2016

Whistleblowing: the tainted process

This article was written by Tamsin Rickard, Professional Support Lawyer

A recent case has widened the scope of protection for whistleblowers, in a decision that may be unwelcome to employers and businesses.

Background: whistleblowing protection

A whistleblowing claim is a powerful weapon for a claimant.  Where an employee is dismissed because they have "blown the whistle” on wrongdoing so as to fall within the protection of the whistleblowing legislation, the dismissal will be automatically unfair with potentially uncapped compensation.  Such a claim requires no minimum period of service.  Worse, perhaps, for employers, such claims often involve the disclosure of sensitive and potentially embarrassing information about the business.  Once this information is aired in the context of a claim, it has the potential to cause real reputational and commercial damage. Whistleblowing claims also have a broader scope of application than most employment legislation, covering employees and workers, which can include LLP members and some agency workers, as confirmed in the recent EAT case of McTigue v University Hospital Bristol.

Section 103A of the Employment Rights Act 1996 (“ERA”), which deals with whistleblowing dismissals, states that a dismissal will be automatically unfair if “the reason (or, if more than one, the principal reason) for the dismissal" is the qualifying (ie whistleblowing) disclosure.  A qualifying disclosure is a disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show one or more of certain specified kinds of wrongdoing.

But where an employee is dismissed and alleges it is because of whistleblowing, how close a connection must they show between the qualifying disclosure and the dismissal? What if the dismissing manager has no knowledge of the disclosure – can a claim still succeed?

Whistleblowing dismissals: who must know about the whistleblowing?

The recent case of Royal Mail v Jhuti established that the answer may be yes, depending on the circumstances.  To summarise the facts of the case very briefly, Ms Jhuti made a qualifying disclosure to her manager, Mr Widner, and as a result was subjected by him to a performance management process.  She failed to meet the demands of the process, faced a disciplinary hearing with a different manager, Ms Vickers, and was dismissed.  She succeeded in her claim for automatic unfair dismissal by reason of whistleblowing, even though Ms Vickers did not know that Ms Jhuti’s qualifying disclosure was (so the Tribunal found) a factor in her being subject to the performance management that ultimately led to her dismissal.

The EAT considered the wording of section 103A ERA and held that here "the reason (or if more than one, the principal reason) for the dismissal” was the qualifying disclosure, even though the decision to dismiss was made by a person, Ms Vickers, in ignorance of the full facts.  The EAT found that where the dismissing manager is manipulated by another person, and that person is:

  • is in a managerial position and is responsible for the employee; and
  • is  in possession of the full facts 

The decision to dismiss can be attributed to the employer, even though it is made by the subsequent manager without full knowledge of the facts.  The EAT found that this was the case here and that based on the ET's findings that decision was by reason of whilstleblowing.  There were a number of factors in this case which the EAT took into account in attributing the decision to the employer, including that Mr Widner appears to have subjected Ms Jhuti to detriments as soon as she made her disclosure and that he laid a “paper trail which set her up to fail”.

What does this mean for employers?

This decision appears to make it easier for claimants to succeed in a claim for whistleblowing dismissal.

Employers sometimes face the situation where an employee makes a qualifying disclosure, then alleges that this has turned management against them and that, as a result, any subsequent disciplinary process constitutes unlawful whistleblowing detriment/dismissal.  Employers may even suspect that employees have made a tactical whistleblowing disclosure to protect their own position. Employers sometimes seek to manage such situations by introducing a different manager who is free from such allegations, to move forward without the risk of whistleblowing claims arising from the original disclosure.  However, this case leaves open the argument that the original manager’s actions can continue to “taint” subsequent decisions and procedures, where, for example, that manager provides information on which later decisions are based.

The practical implications of this judgement are not wholly clear as the parameters for such a claim as stated by the EAT appear fairly narrow: would it be confined to the situation where the original manager intentionally withheld information to manipulate the subsequent manager? If so, these situations may be fairly rare.  However, a further beartrap remains for the employer, as a well-advised employee may still be able to avoid those quandaries by crafting a claim based on the "detriment" to which they have been subjected by the original manager. Defending a detriment claim can be harder for the employer: they must show that the protected disclosure did not materially influence how the whistleblower was treated.  And in a 2013 amendment to the legislation, an employer can be made liable for the detrimental acts of its employee against a whistleblower, even where those acts are done without the employer’s knowledge or approval, so this could be a fruitful route for claimants.

Employers who face such issues should seek advice to devise a process which minimises these risks as far as possible, and flushes out any skeletons in the procedural closet at an early stage.

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