Whistleblowing protection is available where the employer subjects a worker to detriment or dismissal because they have made a ‘protected disclosure’. Two recent EAT rulings have clarified how much the decision-maker must know about the disclosure for a claim to succeed – and therefore flag potential defences to employers facing a claim:
- Where the person deciding on dismissal or detriment is not the person to whom the disclosure was made, the decision-maker must have some knowledge of the substance of the disclosure and not just that a disclosure was made (although they do not need to appreciate that the disclosure falls within the statutory definition of a ‘protected disclosure’). In Nicol v World Travel and Tourism the claimant lost because the decision-maker only knew that complaints had been made about her management style by a number of individuals, and not the content of what the claimant (or others) had reported.
- A worker’s claim of being subjected to detriment by a specific individual (for which the employer can be vicariously liable) will fail if that individual has no knowledge of the protected disclosure, even if they were manipulated into action by someone who did know of and was motivated by the disclosure – William v Lewisham & Greenwich NHS Trust. This contrasts with the position in relation to whistleblowing dismissals: the Supreme Court in Jhuti (see our blog post here) held that an unfair dismissal claim will succeed if the decision-maker is unaware of the disclosure but is manipulated to dismiss for a reason invented by a manager (provided they are above the claimant in the hierarchy) who is aware and motivated by the disclosure. In a detriment claim, it is the motive of the decision-maker alone that matters, given that a different detriment claim could have been brought directly against the alleged manipulator.
For further information, please contact:
Anna Henderson, Herbert Smith Freehills
anna.henderson@hsf.com
