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Whistleblowing – the Distinction Between Dismissal and Detriment

Where a whistleblower is subjected to a detriment, does the motivation of the decision-maker matter?

Under section 47B of the Employment Rights Act 1996, workers are protected from being subjected to a detriment by their employer or colleagues on the grounds that they have made a “protected disclosure”.

This is distinguished from the similar protection that workers have against being dismissed where the principal reason for the dismissal is their protected disclosure – this is dealt with in section 103A of the Employment Rights Act 1996. We recently covered a case dealing with such a dismissal – you can read more about that here.

Claims relating to protected disclosures are commonly referred to as “whistleblowing” claims. For a disclosure to be protected, the worker in question must have disclosed information relating to one of the six types of failure, wrongdoing or malpractice:

  • criminal offences;
  • breach of a legal obligation;
  • miscarriages of justice;
  • danger to health and safety;
  • damage to the environment; and/or
  • the deliberate concealing of information about any of the above.

The worker must reasonably believe that the information they have disclosed shows one of these failures and that the disclosure is in the public interest. The disclosure must also be made to an appropriate person – ordinarily, the worker’s employer.

In William v Lewisham and Greenwich NHS Trust, Dr William worked at a hospital operated by Lewisham and Greenwich NHS Trust. Dr William had a difficult relationship with Dr Ezzati, and on 30 July 2019 there was a confrontation between them.

Dr William made various complaints to the Trust’s Divisional Director – including that Dr Ezzati had failed to properly handover a matter, which resulted in a chickenpox alert on the neonatal ward. The Divisional Director asked Dr Obi, Department Manager, to investigate.

Dr Obi suggested that the confrontation ought to be independently investigated, so Dr Harding, Deputy Medical Director for Performance and Professional Standards, asked Dr McCall to lead a Maintaining High Professional Standards (MHPS) investigation. This MHPS investigation process resulted in Dr William being excluded from work premises for a prolonged period by Dr Harding and then being subjected to a 12-month written warning by Ms Peskett.

Dr William brought a claim under section 47B, arguing that she had been subjected to detriments by the Trust on the grounds that she had made protected disclosures.

The Employment Tribunal held that the disclosure of Dr Ezzati’s failure to handover was a protected disclosure because it related to the endangerment of health and safety. However, while the Trust had subjected Dr William to various detriments throughout the MHPS process, these had not been motivated by the protected disclosure.

Dr William appealed to the Employment Appeal Tribunal (EAT). She referred to the decision in Royal Mail v Jhuti – you can read more about that case here – arguing that even if the decision-makers Dr Harding and Ms Peskett had not been directly motivated by her protected disclosure, they had been manipulated by people who were so motivated. In Jhuti, the Supreme Court confirmed that, where a decision-maker is deceived into acting a certain way by a third-party manipulator, tribunals and courts can penetrate through the invention to find the real reason for the dismissal.

The EAT agreed with the Tribunal that Jhuti did not apply. Jhuti related solely to section 103A (which governs whistleblowing dismissal claims), rather than section 47B (which governs whistleblowing detriment claims).

Instead, Malik v Centros Securities plc applied. In that case, Mr Malik had sought to argue that the decision-makers who subjected him to detriments had been influenced by third parties with knowledge of his protected disclosure, and that the disclosure had therefore materially influenced the decision to subject him to detrimental treatment. The EAT in that case held that the knowledge and motivation of another cannot be imported onto the decision-maker.

The EAT went on to conclude that, even if Jhuti did apply to section 47B, the principle in that case was very narrow, and it did not follow that Dr William’s appeal should succeed. Dr William could not show that a more senior employee had determined that she should be subjected to a detriment because she had made a protected disclosure, and then hid this true motivation behind an invented reason adopted by a decision-maker.

While whistleblowing dismissal and whistleblowing detriment claims are similar, it is important to remember that they are governed by different parts of the legislation (s.103A and s.47B respectively) and different case law (Jhuti and Malik). As such, different rules on causation, knowledge and motivation apply.

A key distinction between dismissal and detriment cases, and one reason for the different approaches in Jhuti and Malik, is that only the employer can be liable in a section 103A claim. By contrast, a whistleblowing detriment claim may also be brought against the alleged manipulator directly, under section 47B(1A).

If you would like advice on how to deal with a protected disclosure or a whistleblowing claim, please get in touch at [email protected]