The Employment Appeal Tribunal has confirmed an important point of law, affecting whistleblowing claims where an honest manager takes action against a whistleblowing employee, without knowing about the whistleblowing, but having been influenced by others who did know and sought retaliation.
When an employee blows the whistle on their employer in the public interest (a.k.a. making a ‘protected disclosure’) and suffers a detriment as a result (for example, receiving a warning), that employee can bring a detriment claim in the Employment Tribunal under section 47B of the Employment Rights Act 1996. A whistleblowing detriment claim can be brought against the employer and/or individual colleagues.
Employees who are dismissed as a result of whistleblowing can bring an automatic unfair dismissal claim in the Employment Tribunal, under section 103A of the same Act. However, an unfair dismissal claim can only be brought against the employer.
In this recent case, a consultant paediatrician “W” complained about a colleague “E’s” lack of handover as having a negative impact on patient care. Among ongoing disagreements and reports made against one another, there was a particular confrontation between E and W that led to an internal investigation. W was later suspended and, when she was found to have provided misleading information about that confrontation, was issued with a written warning.
W claimed that her suspension and warning were a whistleblowing detriment under section 47B. The tribunal agreed there was whistleblowing and there was a detriment, even commenting that the decision to give a warning was a bad one. But it held that the relevant decision-makers were “not motivated to any extent” by W’s whistleblowing.
In a previous case relating to a dismissal, the Supreme Court held that dismissal would be unfair, even if the decision-maker was honestly unaware of any whistleblowing, if their decision was tainted by a colleague’s retaliatory manipulation. W sought to rely on that case to argue that, even if the decision makers who gave her a warning were not doing so in retaliation, they had been manipulated by E who was seeking retaliatory action. Failing that, W contended they were influenced by a general negative dynamic arising from W's whistleblowing.
The EAT confirmed that, where a decision-maker subjects an employee to a detriment while having no prior knowledge of their whistleblowing, the knowledge and motivation of anyone influencing them cannot be attributed to them. This restricts the circumstances relevant to deciding a detriment claim, compared to a dismissal claim.
Had W been dismissed, her attempt to establish a link between her whistleblowing and subsequent treatment may have been more successful. As it was, her claim failed in the first instance and on appeal.
This therefore serves as a reminder of a key distinction between whistleblowing detriment claims and whistleblowing dismissal claims. That distinction may be justified partly by the fact that employees can bring detriment claims against their retaliatory colleagues personally (which is not available for dismissal claims).
On the face of it, this confirmation of a more restrictive test for bringing whistleblowing detriment claims is welcome news to employers. However, fostering a genuinely open culture where staff feel able to speak up remains of central importance to avoiding and defending claims. This can involve maintaining robust whistleblowing policies, training staff and adopting a zero-tolerance approach to retaliation.
Positive steps to support and protect whistleblowers can help limit legal risk but also help ensure legal and regulatory compliance, and avoid negative press and reputational damage, while supporting employee wellbeing and performance.
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