Whistleblowing – What Does the Decision-Maker Know?

Under the Employment Rights Act 1996, workers are protected from being dismissed where the principal reason for their dismissal is that they have made a “protected disclosure”. 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.

Assuming that the disclosure is protected, it must be then determined whether the disclosure was the principal reason for the dismissal. This requires some analysis of the mental process of the decision-maker.

In Nicol v World Travel and Tourism Council, Mr Nicol was employed by the World Travel and Tourism Council (WTTC). He raised concerns about Ms Guevara, the President and CEO of WTTC, on 27 August 2019, in an email sent to two HR consultants engaged by WTTC. On 3 September 2019, one of the consultants told Ms Guevara that complaints had been made about her management style.

Mr Nicol’s employment was terminated by the decision of Ms Guevara, on 14 October 2019. The purported reason for the termination was redundancy. Mr Nicol brought claims before an employment tribunal, including for automatically unfair dismissal in relation to his protected disclosure.

The Tribunal dismissed Mr Nicol’s claim for automatically unfair dismissal. Although the email of 27 August 2019 was considered to be a protected disclosure, the Tribunal found that it was not communicated to Ms Guevara in sufficient detail, such that she was not aware that it was a protected disclosure, until after legal proceedings had commenced. The protected disclosure therefore could not have been the principal reason for Ms Guevara dismissing Mr Nicol.

Mr Nicol appealed. He argued that the Tribunal had misapplied the law by requiring the onward communication of the protected disclosure from the HR consultants to Ms Guevara. His argument was that, as long as a protected disclosure had been made to the HR consultants, and Ms Guevara knew that a disclosure had been made, Ms Guevara did not need to know the details of that disclosure.

The Employment Appeal Tribunal (EAT) considered that the key question was whether it would be sufficient that Ms Guevara knew that a disclosure had been made to the HR consultants, or whether she would need to know some of the content of the disclosure.

Mr Nicol’s argument was that the content of the disclosure was entirely irrelevant, and all that mattered was whether a protected disclosure had in fact been made. But, as raised earlier, some analysis of the mental process of the decision-maker in these cases is necessary to determine the principal reason for their decision to dismiss. If they were not aware of certain facts, then how could these be relevant to their decision? For employers to be liable for their reason for a dismissal, it seems fair that they must at least know what the disclosure consisted of, regardless of whether they know it is protected or not.

This was the key factor in Beatt v Croydon Health Services NHS Trust. In that case, the Court of Appeal held that an employer was liable where they knew the content of a disclosure but not that it qualified as protected. But this is distinct from the issue in Nicol, where Ms Guevara did not even know the content of the disclosure.

The EAT therefore concluded that the Tribunal had not erred in directing itself to the question of what details of the disclosure were communicated to Ms Guevara.

This decision confirms that the required level of knowledge for a whistleblowing claim to be successful is more than the mere fact that disclosure has been made – the decision-maker must have some knowledge of what the worker is disclosing.

This does not mean that employers can simply keep decision-makers in the dark, to ensure that they are not tainted by the knowledge of the protected disclosure. The Supreme Court in Royal Mail v Jhuti confirmed that tribunals and courts can penetrate through the invention and find the real reason for the dismissal, where a decision-maker is deceived into acting a certain way by a third-party “manipulator”, who is aware of the content of the protected disclosure. Ian Machray wrote about this case in more detail at the time – you can read that here.

In Nicol, the HR consultants were not considered to be deliberate manipulators. One could, however, argue that the current position following Nicol encourages poor internal communication over disclosures – ultimately, the HR consultants’ failure to provide Ms Guevara with sufficient detail regarding Mr Nicol’s disclosure saved the employer from liability. It is therefore questionable whether the current legal position represents a satisfactory state of affairs from a policy perspective.

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