Whistleblowers in the UK have protection against being subjected to a detriment in employment by reason of having blown the whistle and made a protected disclosure. They have a separate right not to be dismissed for having made a protected disclosure – any such dismissal is automatically unfair.
In the case of Royal Mail v Jhuti, the Supreme Court held that you could look behind the motive of the decision maker in whistleblowing unfair dismissal cases. The dismissing officer in this case was unaware of the protected disclosure. But someone in the background was manipulating the situation, motivated by the disclosure. The Supreme Court held you could look behind the motive of the decision maker. The employee was automatically unfairly dismissed for whistleblowing.
It was uncertain whether the same principle (of looking behind the motive of the decision-maker) could be applied in a case of whistleblowing detriment. The Employment Appeal Tribunal recently looked at this very issue in the case of Williams v Lewisham & Greenwich NHS Trust. The Claimant was a consultant. She had raised concerns about the abandonment of draft guidelines. She also criticised her colleague, Dr E, for failing to hand over at the end of a shift. An altercation occurred between the Claimant and Dr E some weeks later. The Claimant was suspended – twice. She was eventually given a written warning for providing a misleading account of the altercation. She claimed detriment on grounds of having made protected disclosures.
The Claimant’s claim failed. The tribunal held that the lack of hand over was a protected disclosure. The protected disclosure did not lead to the detriments. The decision makers in her two suspensions and written warning did not know about the protected disclosure. They were focused on the altercation between the Claimant and Dr E.
The EAT agreed with the tribunal. The tribunal had been correct to hold that, in whistleblowing detriment claims, you should not look behind the motive of the decision maker. The EAT case of Malik v Centros Securities Plc – in which Choudhury P held that ‘importing the knowledge and motivation of another to [the] decision maker … is not permissible in considering the reason why the decision maker acted as he or she did’ – should be followed. The Supreme Court’s decision in Royal Mail v Jhuti – which held that you could look behind the knowledge of the decision maker in looking at whether the real reason for dismissal was whistleblowing – was not relevant. Malik concerned detriment – where you can bring a separate claim against the individual ‘puppeteer’ in the background if there is one. In dismissal cases like Jhuti, you cannot claim against any background individual.
Malik was the relevant authority in this case and the tribunal had been correct to apply it.
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