Whistleblowing and unfair dismissal

In this case, the Employment Appeal Tribunal (EAT) has considered whether a dismissal was automatically unfair as a result of the employee making protected disclosures.

Secure Care UK Ltd v Mott, EA-2019-000977

Facts

The claimant had made various complaints to his employer about staff shortages, working hours, rest breaks and staffing issues, which he claimed to be a health and safety risk. After his dismissal for redundancy, he brought a claim in the employment tribunal for unfair dismissal. He argued that his selection for redundancy had been on the grounds that he had made protected disclosures, meaning that his dismissal was automatically unfair.

The claim was upheld, with the tribunal finding that three of the alleged nine disclosures met the test for protected disclosures. The tribunal held that the act of highlighting problems to his employer had a “material effect” on his selection for redundancy, making the dismissal automatically unfair despite the finding that there had been a genuine redundancy situation.

EAT decision

The EAT upheld the employer’s appeal on two grounds. The tribunal had applied the wrong test in finding that the claimant’s dismissal was automatically unfair. The proper test is whether the protected disclosures were the ‘sole or principal reason’ for dismissal, not whether the disclosures ‘materially influenced’ the employer’s treatment of the claimant (which is the test applicable to claims for detriment on the grounds of making protected disclosures, rather than dismissal). 

The tribunal had also taken into account the impact of all of the claimant’s complaints on the employer, rather than limiting itself to considering the effect of only the three protected disclosures.

Consequences of this decision

This case illustrates how a claim relating to alleged protected disclosures will first require careful consideration of whether the disclosures relied upon meet the requirements for being protected. Disclosures are not necessarily protected unless they fall within the statutory requirements for being both a qualifying disclosure and protected. In addition, the test for establishing that a dismissal is automatically unfair requires the protected disclosures to have been the sole or principal reason for the dismissal. This is a relatively high hurdle for a claimant to meet, even if they can show that they have made protected disclosures.

These articles are from the November 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts’ Employment Team.