The legal background
The Employment Rights Act 1996 ("ERA") provides protection for workers against being subjected to a detriment and for employees against being subjected to a detriment or being dismissed on the ground that they have made "protected disclosures" (sections 103A and 47B). In order for there to be a protected disclosure, there must first be a "qualifying disclosure" which requires information to be disclosed which, in the reasonable belief of the employee, is made in the public interest and tends to show that one or more of a list of wrongs is occurring (sections 43A and 43B ERA). For the "qualifying disclosure" to become a "protected disclosure" it must be disclosed to the employer (sections 43C-43H ERA). In Nicol it was accepted that, in this context, "employer" included external HR consultants who had been engaged by the employer.
Facts
Mr Nicol was employed as Vice President of Communications by the World Travel and Tourism Council ("WTTC"), a non-profit organisation in the tourism industry. In June 2019, the company's CEO sent a number of angry WhatsApp messages to a junior member of Mr Nicol's team. Mr Nicol warned the CEO about the dangers of communicating with junior members of staff via WhatsApp. In August 2019, Mr Nicol emailed HR consultants engaged by WTTC to complain about the management style of the company's CEO, raising particular concerns about her use of WhatsApp to communicate with junior staff. Mr Nicol's email was forwarded to the CEO but she denied reading the email. Similar concerns about the CEO's management style were also raised when the HR consultants conducted workshops with junior staff in August 2019.
In September 2019, the HR consultants told the CEO that they had received a number of complaints about her management style at the workshops and had received a particular complaint about her communications on WhatsApp. No specific reference was made to Mr Nicol's email.
In October 2019, the CEO terminated Mr Nicol's employment. Mr Nicol raised claims of automatically unfair dismissal and detriment as a result of making protected disclosures but these were dismissed by the Tribunal. The Tribunal held that Mr Nicol's email to the HR consultants was a protected disclosure. However, the Tribunal found that the CEO did not have sufficient detail about the complaint for that to have influenced her decision to dismiss Mr Nicol, so the treatment he complained about could not be said to have been because of the protected disclosures.
Mr Nicol appealed the decision to the EAT, arguing that for an employer to be liable in a whistleblowing claim, it is sufficient that the decision-maker knows that a protected disclosure has been made. He argued that there is no requirement for the disclosure to have been made to the decision-maker or even for the decision-maker to know the detail of what had been disclosed.
EAT's decision
Mr Nicol's appeal was not upheld.
In coming to its decision, the EAT considered the structure of section 43B ERA and relevant case law and concluded that it was clear that, in order for there to be a qualifying disclosure, all of the criteria in s43B had to be met. This required a disclosure of information which, in the reasonable belief of the employee, is made in the public interest and tends to show one or more of a list of wrongs is occurring. The EAT concluded that in order for the information disclosed to show that one or more of a list of wrongs had occurred, sufficient factual content and detail must be disclosed.
The EAT went on to consider that, in determining the true reason for a dismissal, the Tribunal will consider the facts known to the decision-maker at the time of the dismissal. Therefore, in a whistleblowing case, the decision-maker needs to have at least some knowledge of the content of the disclosure in order that they can make a decision "on the ground that" protected disclosures had been made.
In this case, the protected disclosure about the CEO's management style was made by Mr Nicol to the HR consultants by way of an email which was forwarded to the CEO although she did not read the email. The HR consultants then informed the CEO that a number of complaints had been made about her management style, including a complaint about her communications on WhatsApp. However, they did not specify that they had received a complaint from Mr Nicol. Mr Nicol had previously raised his concerns about the CEO's WhatsApp communications directly with the CEO. The EAT concluded that, on the basis of the information from the HR consultants, the CEO knew that complaints had been made about her management style but she did not know the source or the substance of the complaints. The EAT held that the protected disclosure therefore had not been communicated by the HR consultants to the CEO in sufficient detail for the CEO to be aware that a protected disclosure had been made. The EAT concluded that it was not sufficient that the CEO knew that complaints had been made and Mr Nicol's dismissal therefore could not be said to have been on the ground that he made a protected disclosure, as the CEO did not know sufficient detail about the protected disclosure to make a decision on those grounds.
To illustrate this point, the EAT gave the example of an employee who made a number of complaints which did not amount to protected disclosures then made a further complaint which did constitute a protected disclosure to someone else. The EAT considered that, if the decision-maker dismissed the employee for making a final disclosure even though they did not know the content of it – they were simply fed up with the employee making complaints - then the dismissal cannot be on the grounds that the employee made a protected disclosure.
The EAT distinguished this case from the UK Supreme Court case of Royal Mail Ltd v Jhuti [2019] UKSC 55, where the decision-maker had no knowledge that a protected disclosure had been made but an employee fully aware of the content of a protected disclosure influenced the decision-maker.
Comment
This case clarifies that, in order for an employer to be liable in a whistleblowing claim, a decision-maker must have some knowledge of the detail of the employee's protected disclosure. It is not sufficient that a protected disclosure has been made to someone within the organisation and the decision-maker is aware of that fact.
This decision takes account of the fact that the purpose of sections 103A and 47B of the ERA is to provide protection for employees who blow the whistle on their employer's wrongdoings. It follows that, in order to be liable, the decision-maker must know something about the substance of the allegations. This also makes sense from a causation perspective as it is difficult to see how a decision can be made on the ground of a protected disclosure, when the decision-maker has no knowledge of the detail of the protected disclosure.
If you need any assistance in relation to the issues raised in this updated please do not hesitate to get in touch with our Employment and Pensions Law Team.
Authored by Iona Hamilton, a solicitor in the Employment Team.
