A person subjecting a whistleblower to detriment must be personally motivated by the protected disclosure
The recent Employment Appeal Tribunal (EAT) case of Malik v Cenkos Securities Plc has clarified a technical and litigious point in relation to personal knowledge and motivation in whistleblowing claims.
Back in 2013, in the case of Western Union Payment Services UK Limited v Anastasiou, the EAT held, hypothetically, there could be cases where a person subjecting a whistleblower to detriment might not have personal knowledge of the protected disclosure, but nevertheless the disclosure could still materially influence the individual’s treatment of the whistleblower. An example was used to illustrate the point; where a manager takes detrimental action against a worker, e.g. issuing a disciplinary warning, completely in ignorance of any protected disclosures, but influenced by someone further down the “chain of command” who was motivated by the fact that the worker had made a protected disclosure.
During Dr Malik’s employment, issues arose in relation to conflicts of interest and the failure to declare these. Dr Malik had also made a number of disclosures, and some of these were later held to be protected.
Cenkos’ Head of Compliance subsequently suspended Dr Malik whilst investigations took place into the conflict of interest. There was a dispute as to whether the Head of Compliance was motivated by Dr Malik’s protected disclosures and Dr Malik suggested that there was a conspiracy to get rid of him. Dr Malik therefore resigned and brought claims for constructive unfair dismissal, automatic unfair dismissal, detriment on whistleblowing grounds and victimisation. Dr Malik lost all of those claims, with the Employment Tribunal finding that the Head of Compliance’s decisions had nothing to do with Dr Malik’s protected disclosures.
On appeal, Dr Malik argued that the Employment Tribunal had failed to consider whether his case involved a “chain of command”. He also sought to rely upon Royal Mail Limited v Jhuti, where the Court of Appeal found that whilst a decision-maker in a dismissal must usually have personal knowledge of the protected disclosure, in some limited circumstances it might be appropriate to attribute another person’s knowledge to the decision-maker. Two such circumstances would be cases where facts are manipulated either by someone with responsibility for a disciplinary investigation or by someone near the top of the employer’s hierarchy.
Dr Malik’s appeal was dismissed. The EAT did not agree with the hypothetical finding in Anastasiou. The EAT found that whistleblowing cases should align with discrimination claims, in which the discriminator must have personal knowledge of the protected characteristic and motivation. This was because the scheme for vicarious liability under section 47B of the Employment Rights Act 1996 was very similar to the scheme under the Equality Act 2010. The Jhuti case could be distinguished because it was an unfair dismissal claim rather than a detriment claim. In a dismissal case, the motivation of someone other than the dismissing officer can be attributed to the employer (in limited circumstances) because the liability for the dismissal lies only with the employer.
The case law is technical but ultimately it should be noted that there is now a broadly uniform approach. In respect of personal knowledge, whistleblowing detriment claims are aligned with discrimination claims, and personal knowledge must be established. There is a small difference, in a whistleblowing unfair dismissal claim the approach is broadly similar, although there is limited scope to impute another’s knowledge (Jhuti). In practice, now in whistleblowing detriment claims Claimants will need to show that the person subjecting them to detriment had knowledge of the protected disclosure and was motivated by it. It follows that Respondents will need to try and demonstrate the opposite. This will, of course, come down to the available evidence and it is expected that email evidence (showing recipients) will form a key element of this.