Whistleblowing – another difference between detriment claims and dismissal claims

We reported last month on the different causation test in whistleblowing claims: the law protects whistleblowers from detriments “done on the ground that” they made a protected disclosure and from dismissal where the protected disclosure has to be the “reason or principal reason”.

Another recent case looked at further difference between the two types of claim.

In Royal Mail Group v Jhuti, the Court of Appeal found that an employer could be liable for unfair dismissal even where the dismissing officer did not know of the protected disclosure. This was in circumstances where an individual who did not know of the disclosure had manipulated a process or instigated an investigation and therefore caused the dismissal. The Court of Appeal did emphasise in its decision that such cases would be rare and in very particular circumstances.

In William v Lewisham and Greenwich NHS Trust, the EAT looked at this issue in relation to detriment claims.

The Claimant made a protected disclosure about a colleague’s failure to handover adequately. The Claimant was filmed having a confrontation with the colleague about whom she had complained and was alleged to have provided incorrect information about this incident. She was given a written warning.

She claimed that the written warning was a detriment because of her protected disclosure but the Tribunal rejected this claim on the basis that the disciplining officer had no connection to the disclosure and had dealt with the disciplinary issue in isolation.

The Claimant appealed on the basis that Jhuti suggested that there was no need for the disciplining officer to know of the protected disclosure if someone who did know had manipulated the process. The EAT found that the rationale in Jhuti applied only in relation to dismissal claims and not to detriment claims. The EAT found that the existing authority on detriment claims (Malik v Centros Securities plc) is that “importing the knowledge and motivation of another to the decision maker is not permissible” and that stands in relation to detriment claims.

This decision is another example of the complexity of whistleblowing claims in the Employment Tribunal.