Can an employer be liable for whistleblowing?

17th January 2020

Can an employer be liable for whistleblowing?

If the main reason for a dismissal is the fact that the employee has ‘blown the whistle’, the dismissal will be automatically unfair. Recently, the Supreme Court held that an employer was liable for automatic unfair dismissal even though the decision maker did not know that the employee had made protected disclosures.

In Royal Mail v Jhuti, the employee made protected disclosures relating to alleged breaches of Royal Mail rules and Ofcom requirements. She told her team leader. Her team leader suggested that her allegations could cause problems for everyone and asked her to retract them. The team leader subsequently raised performance issues for the first time. The employee found this very upsetting and began worrying about her future employment and so withdrew her complaint. The employee was then put through a performance management process with targets and expectations which were unrealistic. She claimed that she was subjected to a detriment because of the protected disclosure she had made. A different manager was appointed to consider her dismissal on performance grounds. Details of the whistleblowing allegations were not made available to this manager and she was told that the employee accepted that it had been a misunderstanding. Ultimately the employee was dismissed by the second manager for poor performance.

The Supreme Court held that the employee had been unfairly dismissed. If a more senior employee decides someone should be dismissed (hiding the real reason) and the decision maker accepts this decision, the reason for dismissal is the hidden reason. To clarify, in this case, the real reason for the dismissal was the fact that the employee had blown the whistle, rather than her performance.

Employers should always ensure that dismissing officers ask for full details of any allegations raised by an employee, especially those relating to whistleblowing or discrimination. In most companies or organisations this level of manipulation by managers will be rare but it can be costly if it does arise, so care must be taken.

For advice regarding dismissal or whistleblowing, please contact Marie Allen on 01473 298126 or email marie.allen@gotelee.co.uk.

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