Two recent Employment Appeal Tribunal (EAT) decisions highlight the importance of recognising when workers or employees have made a protected disclosure, and the risk of claims being brought against employers who fail to respond appropriately.
Workers and employees are protected from detrimental treatment or dismissal for having made protected disclosures (whistleblowing). In order to benefit from that protection, a number of conditions must be satisfied:
- The individual must disclose information.
- The individual must reasonably believe the disclosure is in the public interest.
- The subject matter of the disclosure must relate to a “relevant failure” such as a criminal offence or breach of an obligation.
- The individual must reasonably believe that there has been or will be such a relevant failure.
The disclosure must be made to a particular category of person such as the employer or a regulator. It used to be a requirement that the disclosure was made in “good faith” but this is no longer part of the legal test.
Where whistleblowing is the sole or principal reason for a dismissal, it will automatically be an unfair dismissal and the amount of compensation a tribunal can award is uncapped.
Martin v. London Borough of Southwark
A teacher brought a claim that he was subjected to a detriment because he had shared concerns that he and his colleagues were working hours that exceeded the statutory directed time. The teacher raised his concerns in emails sent to the head teacher of his school and the school governors. The Employment Tribunal (ET) held that none of the disclosures he relied upon were protected disclosures as they were not in the public interest and dismissed the claim.
On appeal, the EAT rejected the reasoning of the ET because it had focused on the claimant’s motive for making the disclosure, rather than considering whether the claimant reasonably believed both that the disclosure was in the public interest and that there was a breach of a legal obligation. A disclosure could reasonably be believed to be in the public interest even if the claimant’s motive was predominantly to advance their own interest. The EAT found that ET had not applied the correct test and directed that the case be reheard by a fresh tribunal.
Secure Care UK Limited v. Mr R Mott
The claimant was employed as a logistics manager for three months until he was made redundant along with two other employees. The claimant had made nine protected disclosures to Secure Care UK Limited in relation to its breach of a statutory obligation and endangering the health and safety of workers. Mr Mott claimed that he was made redundant due to the protected disclosures he had made. The ET upheld his claim in relation to three of the protected disclosures as it considered they had a “material influence” upon his selection for redundancy and dismissal. Secure Care UK Limited appealed the decision.
The EAT allowed the appeal in favour of Secure Care UK Limited as the ET had applied the wrong test when looking at whether the reason for dismissal was whistleblowing. The ET incorrectly asked itself whether the protected disclosure “materially influenced” the decision to dismiss. It should have asked whether the disclosures (or any of them) were the sole or principal reason for dismissal.
In both of the above cases, a new ET will have to consider the facts and reach a new decision, so the detriment and dismissal claims may or may not yet succeed. These cases highlight the complexity of the legal test that applies to protected disclosures and that care must be taken to identify when employees benefit from enhanced protection against detriment and dismissal. Failure to consider this properly may result in expensive claims against employers.