Whistleblowing detriment claims: whose motive counts?


3 mins

Posted on 28 Feb 2018

In order to be liable for detrimental treatment on whistleblowing grounds, a person who subjects a worker to a detriment must personally be motivated by the protected disclosure the worker made.  Another person’s knowledge and motivation cannot be imputed to them.  

Facts

In Malik v Senkos Securities plc, Dr Malik made a number of disclosures, some of which the employment tribunal considered to be whistleblowing disclosures.  Around the same time, various issues arose concerning whether Dr Malik had conflicts of interests which he had failed to declare.  The Head of Compliance suspended him pending further investigation. Dr Malik subsequently resigned and brought claims for constructive unfair dismissal and detriment on whistleblowing grounds.   

When considering the whistleblowing detriment claim, the employment tribunal ruled that the Head of Compliance’s decision to suspend Dr Malik had nothing to do with his disclosures.  He appealed, arguing that the employment tribunal should have considered whether this case involved a “chain of command”, enabling another person’s motives to be attributed to him.  Dr Malik argued that there was a conspiracy to get rid of him and others involved in that conspiracy were motivated by the fact he made whistleblowing disclosures. 

Decision

The Employment Appeal Tribunal dismissed the appeal.  The knowledge and motivation of another person should not be attributed to an innocent decision-maker.  It would be unjust for the decision-maker to be liable in circumstances where he is innocent of any discriminatory motivation. 

Implications

A claim for whistleblowing detriment will only succeed where the claimant is able to show that the person who treated them detrimentally was motivated by the whistleblowing disclosure.  This must be right as employees can be held personally liable for their detrimental treatment of colleagues.  It would be unfair to hold them personally liable because of someone else’s unlawful motives.  Where possible, employers should allocate responsibility for disciplinary investigations and decisions to those who are unaware of whistleblowing disclosures so they can demonstrate that any subsequent action has nothing to do with whistleblowing.  

Claimants in cases such as this, where some sort of a conspiracy is alleged, will no doubt look to name others involved in the chain of command as additional respondents in their employment tribunal claim.      

The Court of Appeal in Jhuti v Royal Mail Group Limited recently came to a similar view in respect of claims for automatic unfair dismissal on whistleblowing grounds.  It ruled that when determining an employer’s reason for dismissal, an employment tribunal must only consider the mental processes of the decision-maker.  However it did leave open the possibility that in dismissal cases there may be exceptional circumstances where the motives of another person in the chain of command may be taken into account, for example if there is manipulation by a manager who has some responsibility for the disciplinary investigation or if the manipulator holds a senior position, such as CEO.  

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