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Whistleblowing detriment

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Was a tribunal, in a whistleblowing detriment claim, right to have looked at the motives of decision-makers only, and to have disregarded the issue of whether they had been manipulated by those motivated by the protected disclosure?

Yes, held the Employment Appeal Tribunal in Williams v Lewisham & Greenwich NHS Trust.

The Claimant was a consultant. She had raised concerns about the abandonment of draft guidelines. She also criticised her colleague (Dr E) for failing to hand-over at the end of a shift. An altercation occurred between the Claimant and Dr E some weeks later. The Claimant was suspended (twice). She was eventually given a written warning for providing a misleading account of the altercation. She claimed detriment on grounds of having made protected disclosures.

The Claimant's claim failed. The tribunal held that the lack of hand-over was a protected disclosure. But, the concern about guidelines wasn’t. The Claimant did not reasonably believe that health and safety was likely to be endangered. The protected disclosure did not lead to the detriments. The decision-makers in her two suspensions and written warning did not know about the protected disclosure. They were focused on the altercation between the Claimant and Dr E.

The EAT agreed with the tribunal. The tribunal had been correct to hold that, in whistleblowing detriment claims, you should not look behind the motive of the decision-maker. The EAT case of Malik v Centros Securities Plc – in which Choudhury P held that ‘importing the knowledge and motivation of another to [the] decision maker … is not permissible in considering the reason why the decision maker acted as he or she did’ – should be followed.

The Supreme Court’s decision on whistleblowing dismissals in Royal Mail v Jhuti – which held that you could look behind the knowledge of the decision-maker in looking at whether the real reason for dismissal was whistleblowing – was not relevant. Malik concerned detriment – where you can bring a separate claim against the individual ‘puppeteer’ in the background if there is one. In dismissal cases like Jhuti, you cannot claim against any background individual.
Malik was the relevant authority in this case and the tribunal had been correct to apply it.