In another recent case, William v Lewisham and Greenwich NHS Trust, the Court of Appeal has considered a whistleblowing detriment claim, finding that the knowledge and motivation of another individual who influenced the decision-maker cannot be attached to the decision-maker.
Whistleblowing claims
There are two forms of protection under the Employment Rights Act 1996 for whistleblowers. Firstly, they have the right not to be subjected to any detriment by their employer (or a fellow worker) on the grounds that they have made a qualifying disclosure (blown the whistle). Secondly, if an employee is dismissed and the reason for the dismissal is that the employee made a protected disclosure, the dismissal is automatically unfair.
In considering whether a detriment is "on the ground" that the worker has made a protected disclosure a tribunal will look at the conscious or unconscious mental processes of the wrongdoer.
The Supreme Court has previously held in the Jhuti case (which was an automatic unfair dismissal case, not a detriment case), that an employer could still be liable where the decision-maker did not know about the protected disclosure, 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
Dr William was a consultant at a hospital run by the Trust. She had a poor relationship with another doctor in the team which led to a confrontation. Shortly after, Dr William alleged that the other doctor has failed to provide a handover which meant a chickenpox alert was left on the neonatal ward. Shortly after this, Dr Williams was suspended, an investigation held, followed by a disciplinary hearing and a written warning. She brought a claim for detriment on the grounds of whistleblowing.
Decision
Dr William’s claim failed, because although she had made a protected disclosure and had suffered various detriments, there was no causal link between the two. Dr William argued that actions of other doctors, who knew of the protected disclosure had influenced the Trust in subjecting her to detriments. The court rejected this, holding that in a detriment claim, the Jhuti rule does not apply (it only applies to the unfair dismissal regime). This is because a claim can be brought directly against the alleged manipulator in a detriment claim, but not in an unfair dismissal claim.
Comment
For whistleblowing detriment claims, the knowledge and motivation of another person cannot be attributed to an innocent decision-maker. The focus should be on the why the decision-maker acted as they did.
See our other article on the case of Nicol V World Travel and Tourism Council for a case on automatic unfair dismissal for whistleblowing considering the similar issue of what the decision-maker needs to know.
Frances Rollin