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Whistleblowing: how much does the decision-maker need to know?

Whistleblowing miniature business woman on whistle

In the case of Nicol v World Travel and Tourism Council [2024] the Employment Appeal Tribunal held that the decision-maker in a whistleblowing claim should have some knowledge of the substance of employee’s protected disclosure. The knowledge that the employee has made a protected disclosure is not enough.

Background facts

Mr Nicol raised concerns about Ms Guevara, a President and CEO of the Respondent to two HR consultants engaged by the Respondent.  The two HR consultants run workshops for junior staff at which concerns about Ms Guevara were also raised. Later, one of the HR consultants told Ms Guevara that complaints had been raised about her management style.

Mr Nicol’s employment was terminated about two months later, purportedly by reason of redundancy. He brought claims for automatic unfair dismissal and detriment as a result of having made protected disclosures.

The tribunal found that there was no genuine redundancy and that the dismissal had been used to cover up the breakdown of the relationship between Mr Nicol and Ms Guevara. However, it found that Mr Nicol was not dismissed or subjected to a detriment for making protected disclosures. This was because Ms Guevara did not know sufficient detail of the disclosures.

Mr Nicol appealed to the EAT.

Nicol v World Travel and Tourism Council Decision

The EAT dismissed Mr Nicol’s appeal.

The EAT considered what detail of knowledge is required for a protected disclosure by person B when the actual disclosure is made to person A. The question was whether it is sufficient that person B merely knowns that a disclosure has been made to person A, or whether person B needs to know at least some of the content of the disclosure that has been made.

The EAT concluded that the latter was required in respect of liability for automatically unfairly dismissal.

This was on the basis that whistle-blowers are intended to be protected because they have raised something of substance which Parliament has decided merits protection. For employers to be fixed with the liability they ought to know at least something about the substance of what has been alleged, i.e., some knowledge of what the worker is complaining or expressing concerns about.

The EAT considered that it did not undermine the Supreme Court’s decision in Royal Mail v Jhuti where the decision maker is deliberately kept in ignorance of the substance or content of the disclosure in which case the tribunal would still be permitted to penetrate through the invention if the applicable tests are met.

What does it mean?

This decision is authority that the decision-maker in a whistleblowing case must have some knowledge of the substance of the disclosure to be liable for automatically unfair dismissal. It is likely that this principle would also extend to whistleblowing detriment.

The decision is unsurprising since in law of victimisation the knowledge of the protected act by the victimiser is of real relevance. However, it does not remove protection for whistle-blowers were the decision-maker is deliberately “kept in the dark” about the disclosure and manipulated into acting in a certain way by the person who has the knowledge.

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