But how much did the employee’s whistleblowing influence this outcome?
Under the Employment Rights Act 1996, an employee cannot be subjected to detrimental treatment by an employer for blowing the whistle (making a protected disclosure) and if an employee is subjected to detrimental treatment, the onus is on the employer to show it is not due to the whistleblowing.
The EAT has recently confirmed, in the case Ahmed v City of Bradford Metropolitan District Council, that the correct legal test for assessing whether an employee has suffered detrimental treatment for whistleblowing is whether the disclosure had more than a “trivial influence” on the employer’s actions.
Facts
The claimant in the case had survived four previous redundancy exercises, having been redeployed each time. During a further redundancy exercise in 2010, he was offered an alternative post, subject to a criminal record check and an internal reference, both of which were regarded as formalities. However, at about the same time, he made a whistleblowing disclosure during the course of raising a grievance.
The events that followed, according to the facts established by the tribunal, were that the manager appointed to investigate the grievance put herself forward to write the reference, even though she had no knowledge of his work. She wrote a clearly negative reference, knowing that it would affect his position in relation to the new post, in order to ensure he would not be redeployed this time. The job offer was duly withdrawn, the manager in charge relying to a substantial degree on the reference. Ahmed was dismissed for redundancy and brought various claims, including for detrimental treatment and automatic unfair dismissal for whistleblowing.
Tribunal
The employment tribunal decided Ahmed had been unfairly dismissed and had suffered detrimental treatment because of his whistleblowing in three respects:
- the appointment of the manager who gave the reference
- the negative reference itself
- the manager's failure to correct the misleading information provided about Ahmed’s sickness absence.
However, the tribunal held that although there was clearly a connection between the disclosure, the reference and the withdrawal of the job offer, the employer had not withdrawn the job offer because of Ahmed’s whistleblowing. There was a break in the link between the manager writing the negative reference and the motivation of the manager who failed to appoint Ahmed to the alternative post.
EAT
The Employment Appeal Tribunal overturned this aspect of the tribunal’s decision. The tribunal had applied too strict a test. The Court of Appeal in a previous case, NHS Manchester v Fecitt, said the question to ask is whether the whistleblowing had a "material influence” rather than a trivial influence on the treatment given to the whistleblower. The decision to give an unfavourable reference clearly had more than a trivial influence on the decision not to appoint Ahmed. The fact that the manager in charge of the appointment did not realise he was being misled by the reference did not "sanitise" its effect.
However, the issue of whether the claimant had been automatically unfairly dismissed was less clear cut. One of the oddities of the whistleblowing legislation is that protection against dismissal is also available under separate legislation – the unfair dismissal regime – where a different, stricter, test applies. For a dismissal to be found to be automatically unfair, the whistleblowing must be the main reason, not just one of the reasons, for the dismissal.
The EAT decided to send this question back to the tribunal. Although the decision to dismiss was clearly influenced by the whistleblowing, the EAT could not say on the evidence that it was principally because of it.
Comment
Given the way in which the whistleblowing legislation works, it is always important for employers to ensure they have documented reasons for any potentially detrimental treatment, as this may be needed as evidence that employees’ whistleblowing did not influence the treatment they received.
Helena Davies is a professional support lawyer in the employment group at Hogan Lovells
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