In William v Lewisham and Greenwich NHS Trust, the EAT confirmed that the decision-maker has to know about the protected disclosure, in order for the claimant to succeed in a detriment claim against them.
It clarified that the decision in Royal Mail v Juhti, which established that even if the person dismissing the claimant did not know about the protected disclosure but adopted the invented reason given to them by the decision-maker, the claimant could succeed in their automatic unfair dismissal claim against the employer, applied to the unfair dismissal regime only and did not govern causation in detriment claims.
Background facts
In this case, Ms William worked for the Trust as a consultant paediatrician and neontologist. She had a fractured working relationship with another consultant, Dr Ezatti, and they made various reports against each other. There was an altercation, which Dr Ezatti recorded on her phone.
Following the incident, Ms William made allegations about Dr Ezatti and her manager, Dr Obi, to her Divisional Director, Ms Lawrence. In turn, Ms Lawrence asked Dr Obi to find out what had happened. Dr Obi spoke to Dr Ezzatti and watched the videos. As a result, Dr Obi recommended that the incident should be investigated, and the Trust took a decision to suspend and investigate Ms William.
The investigation found that Ms William gave an inaccurate account of the incident but did not intend to mislead as she was upset at the time. However, it made criticisms of both her and Dr Ezatti and, to a lesser extent, of Dr Obi. Nevertheless, they took a decision to proceed to a disciplinary hearing against her. Following the disciplinary hearing Ms William was issued with a written warning.
Ms William appealed against this sanction, but her appeal was dismissed.
Decision
Ms William brought a claim in the Employment Tribunal that she was subjected to detriments on grounds that she had made protected disclosures.
Whilst the ET found that some of her allegations did amount to protected disclosures and that the Trust had subjected her to detriments by its decision to suspend her, subject her to an investigation and issue her with a written warning, her claim for whistleblowing detriment failed because the Trust’s detrimental decisions were not materially influenced by the relevant protected disclosure.
Ms William sought to argue that the ET should apply the principle in Jhuti to her case. She contended that by making one or more protected disclosures she contributed to the dysfunctional relationship between her, Dr Ezetti and Dr Obi and that this gave rise to the detriments by persuading the Trust’s decision-makers to take the steps that they did. However, the ET rejected this argument.
It considered that it was bound by the case of Malik v Cenkos Securities, which held that the knowledge of another individual who influenced the decision-maker cannot be ascribed to them. The decision-maker has to know of the protected disclosures in order to be materially influenced by them.
Ms William appealed to the EAT but her appeal was dismissed. The EAT agreed that the ET was bound by the decision in Malik and that the decision in Jhuti applied to the unfair dismissal regime only.
What does it mean?
This decision is not surprising given that it follows the established case law. In any case that can be brought against an individual (such as discrimination, victimisation or whistleblowing detriment) the state of mind of that individual is key. The knowledge and motivation of another person cannot be attributed to an innocent decision-maker to make them personally liable or their employer vicariously liable.