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Avoiding successful whistleblowing claims

We are currently seeing an increase in the number of queries and claims relating to whistleblowing.  Whistleblowing claims are complex, can be costly to deal with and carry an increased risk of negative publicity. 

A recent appeal case provides reassurance to employers who need to dismiss an employee, where the reason for that dismissal is unrelated to the whistleblowing.

Background

Whether or not the reason or principal reason for the dismissal of an employee was due to the employee having whistleblown, involves an enquiry into what facts or beliefs caused the decision-maker to decide to dismiss the employee.

Nicol v World Travel and Tourism Council

Mr Nicol was the Vice President of Communications and PR for the World Travel and Tourism Council (‘WTTC’).  On 27 August 2019, he raised concerns about Ms Guevara, the President and CEO of WTTC, to two HR Consultants engaged by WTTC.  On 29 August 2019, the same HR Consultants conducted workshops with junior staff at which concerns about Ms Guevara were also raised.  On 3 September 2019, one of the HR Consultants told Ms Guevara that complaints had been made about her management style.

At some point prior to 27 August 2019, Ms Guevara was considering terminating Mr Nicol’s employment due to becoming aware of an allegation that he had abused a free flights benefit when he was a director of Easyjet in 2010.

Mr Nicol’s employment was terminated 14 October 2019, purportedly for redundancy, by which point the HR Consultants to whom the protected disclosure was made, were no longer engaged by WTTC.

Mr Nicol brought claims in the employment tribunal for automatic unfair dismissal and detriment as a result of making protected disclosures.  His claims were dismissed.  The tribunal found that he was not dismissed or subjected to a detriment for making protected disclosures.  Mr Nicol’s complaint was not communicated to Ms Guevara in sufficient detail for her to be aware of a protected disclosure having been made.

Appeal

Mr Nicol appealed to the Employment Appeal Tribunal (‘EAT’).  He took issue with a large number of the employment tribunal’s findings, one of which was that the tribunal had misapplied the law in finding that, for the protected disclosure to the HR Consultants to count, Ms Guevara must have been told some detail of it. 

The EAT concluded that the employment tribunal had not made an error by deciding that Mr Nicol’s concerns were not communicated in sufficient detail to Ms Guevara to have made her aware that a protected disclosure had been made.  To have whistleblowing liability, the person making the decision to dismiss the employee must know at least some of the content of the disclosure.

Comment

When an employee or worker makes or purports to make a protected disclosure, employers should deal with it in accordance with the organisation’s whistleblowing policy.   

Those making disclosures should be protected through a confidential investigation of their concerns.  Doing this will reduce the risk of any individual making a subsequent decision to dismiss the whistleblower being aware of the protected disclosure. 

It’s also important for any concerns regarding an employee that could lead to their dismissal, such as performance issues, to be documented in writing contemporaneously.  Doing so could provide the employer with strong evidence to support an argument that a dismissal was unrelated to a protected disclosure.