Manipulation of decision-maker irrelevant to whistleblowing detriment claim
The Employment Appeal Tribunal (EAT) has confirmed that in whistleblowing detriment cases, the Tribunal should not look behind the motive of the decision-maker in order to consider whether a third party was manipulating the situation.
Whistleblowing protection
Whistleblowers are protected from detriment and dismissal as a result of having blown the whistle. The two types of statutory protection are found under sections 47B and 103A of the Employment Rights Act 1996 respectively. The fact that protection against detriment and dismissal derive from different parts of the Act means that the two types of protection operate differently in practice.
Facts
In the case of Williams v Lewisham & Greenwich NHS Trust, the claimant was a medical consultant. She made a protected disclosure in respect of the practices of her colleague in failing to hand-over at the end of a shift. The two ended up in an altercation following which the claimant was disciplined. She was not dismissed.
The claimant brought a whistleblowing detriment claim, which the Tribunal rejected. The Tribunal found that the detriment was not motivated by the protected disclosure, but because of the altercation between the claimant and her colleague.
The claimant appealed. One of her grounds of appeal was that the Supreme Court judgment in the case of Jhuti should be applied. The claimant argued that even if the decision-makers were not directly motivated by the protected disclosures, they were manipulated by people who were motivated by the disclosures. The claimant said that this should satisfy the statutory test for causation in whistleblowing detriment claims.
EAT decision
The EAT dismissed the appeal. The Jhuti case was an automatic unfair dismissal claim under section 103A. It was not relevant to this section 47B detriment claim. There is existing EAT-level case law authority for whistleblowing detriment claims, which says that if an individual decision-maker did not know of a protected disclosure, the knowledge and motivation of a third party who influenced the decision-maker cannot be attributed to the decision-maker. The EAT found that the Tribunal had been correct to apply this case law authority in the Williams claim.
The EAT commented that it was possible to apply different roles to whistleblowing dismissal and detriment claims. This is because in dismissal claims, liability rests solely with the employer and it is not possible to pursue individuals for personal liability. However, in detriment claims, it is possible for individuals to be personally liable so in circumstances where a third party has manipulated a process, they may be pursued separately.
Learning points
This decision acts as a useful demonstration of the scope of statutory whistleblowing protection, and how it can operate differently depending on whether the claim is for detriment or dismissal. The claim also underlines the importance for employers of ensuring that information is appropriately shared and recorded so that the knowledge and motivation of individual decision-makers and other key parties can be evidenced in the event of litigation.