Could an employee be unfairly dismissed and subject to a detriment as a result of whistleblowing where the decision-maker knew of the fact of the employee’s disclosure but not its substance?
No, held the Employment Appeal Tribunal, in Nicol v World Travel and Tourism.
The Claimant worked as Vice-President of Communications and PR. He was dismissed and claimed unfair dismissal and detriment due to whistleblowing. He claimed to have made several protected disclosures to the Respondent. The Claimant made one of these to person A, an employee of the Respondent. Person A informed person B (another employee) of the fact of the disclosure but gave no detail of it. Person B dismissed the Claimant.
The tribunal held that the Claimant had not been unfairly dismissed or subject to any detriment for whistleblowing. The Claimant appealed on several grounds. One was that the tribunal had erred in finding that, for the protected disclosure to person A to count, person B must have been told some detail of it.
The EAT, dismissing the appeal, held that the tribunal did not err in deciding that person B needed to be aware of some of the detail of what the Claimant had disclosed to person A. It was not enough that person B knew that the Claimant had made a disclosure to person A. For employers to be fixed with liability, the decision-maker ought to have some knowledge of what the employee is expressing concerns about.
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