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Facts: Mr Nicol, the employee, worked as Vice-President of Communications and PR for the employer. He (amongst others) raised concerns about the CEO in an email to two HR consultants. The email referred to a potential breach of a legal obligation (in relation to the treatment of a junior colleague and a culture of bullying and harassment). One of the HR consultants told the CEO that complaints (including the employee’s) had been made about her management style, but made no direct reference to his email and did not comment on the specifics of the employee’s complaint.
Shortly after, the CEO dismissed the employee. The employee brought whistleblowing claims for automatic unfair dismissal and detriment and said that the real reason he was dismissed was because he had made the protected disclosure.
Tribunal decision
The Tribunal dismissed the employee’s claim. It said that although the employee’s email to the HR consultants was a protected disclosure, it was not read by the CEO and nor was she told about it in sufficient detail for it to be the reason for dismissal.
The employee appealed. He argued there was no need for the detail of the email to have been communicated to the CEO. It was sufficient that the CEO knew he had made a disclosure for it to be the reason for dismissal (and automatically unfair).
EAT decision
The EAT upheld the Tribunal’s decision. The EAT said that for an employee to be automatically unfairly dismissed because of a protected disclosure, the decision-maker should have some knowledge of the nature and content of the disclosure and what the employee is expressing concerns about. Mere awareness of a disclosure is not enough for liability to pass.
Implications: The upshot of this decision is that if an employee makes a disclosure to person A, who tells person B, it is not enough that B knows that the employee has made a disclosure to person A. Person B needs to know sufficient detail of what the employee has said to person A.
This is helpful for employers who need to dismiss an employee who has previously made protected disclosures. However, employers should still act with caution, as it will be tricky to decide at what point the decision-maker knows too much about the disclosure to argue that they cannot be liable for a whistleblowing claim.
Given this risk, decision-makers need to be careful to distance their decision from the disclosure. Including spelling out exactly what the fair reason for dismissal (or other action) is (such as misconduct, capability, redundancy), make sure that this is in no way related to the protected disclosure, and evidence their decision is based on (for example, dates, details of incidents and witnesses etc).
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