An employee has the right not be subjected to detriment by their employer on the ground that they made a protected disclosure. In deciding whether treatment is done ‘on the ground’ of making a protected disclosure, the tribunal must decide whether the protected disclosure was a material factor in the employer’s decision making but it does not have to be the sole cause. It is possible to distinguish between treatment which results from a protected disclosure and treatment which occurs because of something else instead – the manner in which a disclosure was made, or something that was done at the same time as the disclosure or even something which is a consequence of the disclosure rather than the disclosure itself. Sometimes it will be possible to separate the disclosure from these other things but the case of Fitzmaurice v Luton Irish Forum has shown just how much care an employment tribunal must take in applying the legal test to the facts of a case.
The employee worked for the charity employer. The employee raised issues about health and safety, some of which the tribunal accepted were protected disclosures. She then raised concerns about misuse of reserve funds as part of a grievance process. Disciplinary proceedings were brought against her as a result of various things she had said including referring to a polish colleague as a ‘Hitler henchman’. The employee said she was disciplined because of the protected disclosures which she said was a fundamental breach of contract which entitled her to resign and claim constructive dismissal. The employment tribunal said that there was no connection between the disciplinary proceedings and the whistleblowing. The employee appealed, saying the tribunal had misapplied the legal test and the decision that the protected disclosures were not the reason for the disciplinary proceedings was perverse.
The EAT said the tribunal had not applied the legal test correctly. The judgment showed that the tribunal was asking whether the whistleblowing had been the reason for the treatment. It failed to ask the important question which was whether the whistleblowing was a material factor in the detriment (the disciplinary process) occurring. The case was sent back to the employment tribunal to decide whether the disciplinary proceedings were brought because of conduct that could be separated from the whistleblowing itself. However, bearing in mind the findings of fact about the employee’s conduct – particularly the comment made about her polish colleague – the tribunal said the outcome was by no means guaranteed.
This case is a reminder that whistleblowing need only be a material factor in, rather than the sole cause of, any detriment. Some whistleblowing cases are straightforward. However, in many cases, protected disclosures can form part of a larger and prolonged grievance between a business and a disgruntled employee, often spanning a long period of time. It can be difficult to separate the whistleblowing from other behaviours or actions than may happen at or around the same time. This case is a reminder that employers must tread very carefully before taking any disciplinary action to ensure that any whistleblowing is not a material factor in any disciplinary proceedings.
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539