Dismissal of a whistleblower found to be automatically unfair

Whistleblowing Overview:

Under the Public Interest Disclosure Act 1998 (PIDA), protection is given to workers who make ‘protected disclosures’, commonly known as “whistleblowing”.

To be a protected disclosure, the disclosure must contain information the worker reasonably believes is in the public interest and tends to show a certain wrongdoing, such as a criminal offence, a breach of a legal obligation or someone’s health and safety is at risk.

A dismissal is automatically unfair if the reason or principal reason for the dismissal is because the employee made a protected disclosure.

Case Headline:

In the case of The Laurels Family Assessment v Kay, the Employment Appeal Tribunal (EAT) reinforced the Employment Tribunal’s (ET) decision that an employee’s dismissal was automatically unfair as they had been summarily dismissed the same day they had raised safeguarding concerns in relation to the conduct of another colleague.

Facts:

The employee, K, worked as a family support worker for vulnerable adults. They had raised concerns about a colleague who appeared to have attended work under the influence of recreational drugs and showed signs of being on a ‘come down’. K first reported the concerns to their manager.

Concerned that no action had been taken, around three weeks later, K reported their concerns to an external visitor who was responsible for safeguarding reporting to OFSTED. Later that day, K was called into a meeting without prior notice and summarily dismissed for gross misconduct. K was not given the opportunity to respond to any allegations raised.

In K’s dismissal letter, several reasons for dismissal were given including K’s incorrect recording of medication administration, failing to obtain authorisation to attend an unplanned meeting and leaving without manager authorisation.

K brought a claim for automatic unfair dismissal and contended the reason for her dismissal was because of the protected disclosures made.

Judgment:

The ET found that the conversations with K’s line manager and the external visitor both amounted to protected disclosures and therefore K was afforded whistleblowing protections. The ET found, that the protected disclosures were the principal reason for the dismissal and the dismissal was automatically unfair.

K’s employer appealed the decision, however the EAT agreed with the ET’s decision and found that there were adequate reasons and evidence to find the whistleblowing was the operative reason for dismissal.

How does this impact employers?

This case highlights that the protection afforded to whistleblowers goes beyond the initial disclosure. How an employer conducts a disciplinary and appeal process will likely be relevant to the assessment by an ET of whether any treatment was linked to the disclosure. It also demonstrates the importance of protected disclosures being investigated and documented thoroughly with a fair and clear process followed throughout.

Furthermore, this case shows that when an appeal is made, particularly on the grounds of perversity, the bar is high and where clear evidence is substantiated and drawn on by the ET, then the EAT is unlikely to interfere with the ET’s decision.

For advice on what amounts to a protected disclosure, and how to manage or respond to one, contact a member of the Gordons Employment Team.