Whistleblowing: a legal update

In recent weeks, “the Facebook whistleblower”, Frances Haugen, has been back in the headlines for giving evidence to the UK Parliament and for calling for Mark Zuckerberg to step down. It therefore seemed timely to focus this week’s blog on two recent Employment Appeal Tribunal (EAT) cases which – whilst not making any ground-breaking new statements on the law – have provided a helpful restatement or clarification of some key principles of whistleblowing law.

Has there been a qualifying disclosure?

The first EAT case in my spotlight is Martin v London Borough of Southwark (2021). The Claimant was concerned that teachers, including himself, were working in excess of “statutory directed time”. He alleged that he had made protected disclosures and as a result had been subject to detriment. The Tribunal held that none of the disclosures relied upon by the Claimant were qualifying disclosures. However, the EAT found that the Tribunal had failed properly to analyse the five elements of the statutory test (set out below) and so upheld the appeal and remitted the case to a new Tribunal.

The EAT reiterated the 5-stage test for determining if there has been a “qualifying disclosure” for whistleblowing purposes:

1. Firstly, there must be a disclosure of information;
   
   
2. Secondly, the worker must believe that the disclosure is made in the public interest;
   
   
3. Thirdly, that belief must be reasonably held;
   
   
4. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters set out in s43B(1)(a)-(f) Employment Rights Act 1996 (for example, that a person has failed to comply with a legal obligation); and
   
   
5. Fifthly, that belief must be reasonably held.

The EAT stressed the importance of adopting a “structured approach” to determining whether there has been a qualifying disclosure. This means methodically working through the five elements in turn; asking the right questions in the right order. It does not mean that in every case it will be necessary to address each element – for example, in a case in which there was no disclosure of information, it would not be necessary to address the other elements. By adopting a structured approach, the Tribunal will identify unambiguously which, if any, of the five conditions are accepted and which are in dispute, and it will also assist a Tribunal to ensure and demonstrate that it has not confused or elided any elements of the 5-stage test.

Ultimately it is for a court to determine whether or not an employee is protected under whistleblowing legislation. However, for employers, understanding the thought process that Tribunals will follow in coming to this decision may be helpful in enabling them to assess the likelihood of an employee having made a qualifying disclosure.

When is the motivation of someone other than a dismissing manager relevant?

In the earlier case of Royal Mail Ltd v Jhuti (2019), the Supreme Court held that an employer was liable for automatically unfair dismissal as a result of protected disclosures, even though the dismissing manager was unaware of the protected disclosures (see here for our commentary on the case). The Supreme Court held that, when searching for the reason for a dismissal, courts need generally look no further than the reasons given by the appointed decision-maker. However: “if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason”.

The second EAT case in my spotlight is Kong v Gulf International Bank Ltd (2021). It was not disputed that the Claimant had made protected disclosures and the Tribunal found that the treatment of the Claimant by the Respondent’s Head of Legal was materially influenced by the protected disclosures. However, the Tribunal determined that any impermissible motivation on the part of the Head of Legal could not be attributed to the managers who subsequently took the decision to dismiss the Claimant. The EAT upheld this decision.

The EAT reiterated that the starting point remains that the reason for a dismissal “connotes the factor or factors operating on the mind of the decision-maker which causes them to take the decision”. The EAT described 3 essential features for the Jhuti exception to apply:

1. Firstly, the non-decision-maker must have sought to procure the employee's dismissal because of the protected disclosures;
   
   
2. Secondly, in making the decision to dismiss, the dismissing manager must have been "peculiarly dependent" upon the non-decision-maker as the source for the underlying facts and information concerning the case; and
   
   
3. Thirdly, the non-decision-maker’s role or position must be such that it would be appropriate for their motivation to be attributed the employer.

Turning to the facts of the appeal, the EAT indicated that Jhuti will not be engaged where the non-decision-maker has no direct management responsibility for the employee and where they do not actively seek the dismissal of the employee. It also indicated that a significant degree of manipulation or invention is a necessary ingredient for Jhuti to apply.

This case reinforces comments made in other cases that the Jhuti exception, when the motivation of a non-decision-maker can be attributed to the employer when ascertaining the reason for dismissal, is narrow and will only apply in very limited circumstances. This is positive news for employers, although it remains advisable for decision-makers to ensure they can demonstrate their independence when coming to a decision to dismiss, that they have all the relevant facts, and that the reasons for any dismissal are properly documented.

If you require further information about anything covered in this blog, please contact Alice Kendle or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2021