Whistleblowing - what does the decision-maker need to know?

In the recent case of Nicol v World Travel and Tourism Council, the Employment Appeal Tribunal (EAT) held that an employer would not be liable for automatic unfair dismissal under the whistleblowing provisions if the decision-maker did not know what the employee had expressed concerns about.

Whistleblowing claims

If an employee is dismissed and the reason or principal reason for the dismissal is that the employee made a protected disclosure (blown the whistle), the dismissal is automatically unfair. When considering whether the protected disclosure was the reason (or principal reason) for dismissal, a tribunal would look at the mental process of the decision-maker.

The Supreme Court has previously held in the Jhuti case, that an employer could still be liable for automatic unfair dismissal, where the decision-maker did not know about the protected disclosure, but was manipulated to dismiss by a person, but was manipulated to dismiss by a person, in the hierarchy of responsibility above the employee, who did know of it (see our summary here).

Facts

Mr Nicol was employed by World Travel and Tourism Council (WTTC). He raised concerns about the CEO with HR, as did others. The CEO was told that complaints had been made about her, but no detail was given. Shortly afterwards, WTTC made Mr Nicol redundant. He brought a claim for automatic unfair dismissal because of whistleblowing.

Decision

Mr Nicol’s unfair dismissal claim failed. Although Mr Nicol had made a protected disclosure, the decision-maker (the CEO) did not know the content of what Mr Nicol had complained about and therefore his protected disclosure was not the reason for his dismissal. The EAT held that, in order for an employer to be liable for automatic unfair dismissal, the decision-maker ought to know at least something about the substance of what has been alleged.

That EAT made it clear that this principle does not affect the Jhuti case rule (see above). Therefore, it remains the case that if the decision-maker is deliberately kept in ignorance of the substance of the disclosure and a bogus reason for dismissal is invented, then the employer can still be liable.

Comment

Generally, in whistleblowing dismissal cases, the disclosure is well known to the decision-maker. In this rarer circumstance, where the decision-maker is unaware of the content of the disclosure, unless there is some manipulation, the claim will fail.