Whistle blowing dismissals
Dismissing an employee who has blown the whistle is automatically unfair but only if the reason or principal reason for the dismissal is that they have made a protected disclosure.
In the next case, an ET drew a distinction between the fact of making the protected disclosures and other features of the case which were related to, but were separable from, the fact that the dismissed employee had made protected disclosures.
The Claimant was a police officer. He made protected disclosures to senior officers concerning the attitude of some police officers to race and the treatment of victims of rape, child abuse and domestic violence. There was an investigation but the Claimant was not happy with the outcome and he began to campaign for the force to take the action that he believed appropriate. By the time of his dismissal, he was occupying huge amounts of management time.
Eventually, the Claimant was dismissed, ostensibly on the basis that he had an incompatible outside business interest.
The ET decided that the Claimant’s protected disclosures were not the reason for his dismissal and rather it was a combination of long absence through sickness, from which he would never return, coupled with the sheer effort of dealing with his correspondence and complaints and the employer’s exasperation that the Claimant would not give up until he got the answer he wanted. Therefore, the Claimant’s claims failed.
The EAT upheld the employment tribunal's reasoning and conclusion.
As this case shows, dismissing an employee who blows the whistle is only automatically unfair if dismissal is because of the whistleblowing disclosure. Many whistleblowing claims fail because the employee cannot establish the necessary link between their dismissal and their whistleblowing. However, employers who intend to dismiss an employee who has made a whistleblowing disclosure need to proceed cautiously because an ET may not accept an employer’s assertion that dismissal was separate from the whistleblowing disclosure.
If you would like advice about how the issues in this note apply to your situation, please contact me.
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