Whistleblowing: the decision-maker must know substance of the disclosure

In Nicol v World Travel and Tourism Council, the EAT was involved in an analysis of the extent to which a decision-maker needs to be aware of the substance of an act of whistleblowing for the employer to be liable for unfair dismissal.

In this case, the Claimant had made protected disclosures to an HR consultant by email. The HR consultant told the CEO that the Claimant had expressed concerns, but the Tribunal found that the CEO did not read the email in question and nor did she know the substance of the email. She only had general knowledge of the fact that the Claimant had raised concerns about a colleague’s behaviour.

The employer accepted that the email in question satisfied the statutory provisions and was a protected disclosure. However, the Tribunal found that the employer could not be liable for the dismissal because the person who made the decision to dismiss was not aware of the disclosure itself.

The EAT upheld the decision and agreed with the employer. The EAT considered the statutory wording “An employee who is dismissed shall be regarded as unfairly dismissed if the reason or, if more than one, the principal reason, for the dismissal is that the employee made a protected disclosure.”  

The EAT interpreted this as meaning that the employer needs to know at least some of the content of the disclosure. By way of example, they cited the example of an employee who made a series of complaints which were not protected disclosures and the last one was a protected disclosure. What if the decision-maker was simply fed up with the employee making complaints and dismissed them without even looking at the substance of the last complaint? The EAT found that it would not be in line with its interpretation of the legislation for such employer to be found liable for unfair dismissal. To be liable, it must at least know something about the substance of the complaint.

This case does not mean that colleagues can manipulate the system by not letting the decision-maker know about the protected disclosure. The recent case of Royal Mail Group v Jhuti had established that where a decision-maker is deliberately kept in ignorance about a disclosure and a bogus reason for an investigation is invented, the Tribunal can look behind that and find the employer liable, because in such case the disclosure is the reason for the manipulated process and therefore the reason for the dismissal.

As an aside, another part of the EAT’s decision related to the finding of fact that “the Claimant had made inappropriate sexualised comments to a colleague.” The EAT said that the Tribunal was not permitted to make this finding of fact because:

• The Claimant had denied making the statements in his witness statement;
• The Claimant had not been cross-examined on this issue; and
• The Claimant did not know whether this matter was being put in issue.

This is a reminder to those conducting cases, and cross-examining witnesses, that if you are challenging evidence and want to make submissions about such evidence, you must cross-examine the witness on such points. You cannot fail to challenge evidence but then dispute it in submissions at the end of the case.