Whistle-blowers are generally protected against retaliation by employers, but what happens when the whistle-blower also behaves badly?
What does the law say and what can the employer do?
A worker who makes a protected disclosure within s.47B Employment Rights Act 1996 (ERA) – colloquially known as a “whistle-blower” - is legally protected from being subjected to a detriment by their employer on the grounds that they have made that disclosure.
They will also be found to be unfairly dismissed, automatically, if “the reason or principal reason” for the dismissal was that they made such a disclosure.
This protection is designed to ensure that anyone who legitimately raises a qualifying concern is safe from subsequent employer reprisal.
Whilst this protection is significant, it should be noted that it applies where the action taken is “on the ground” that the worker made the disclosure.
It is not an all-encompassing protection allowing the worker to behave exactly as they wish.
It is not uncommon for protected disclosures to be made in the midst of other employment issues – often made or purported to be made during a disciplinary process for both genuine and often strategic reasons too.
The employer is then faced with the issue of ensuring that any legitimate action it takes is not tainted by the protection given to a whistle-blower.
In this recent case, the Court of Appeal provided helpful guidance to employers confirming as follows: -
Ms Kong had been employed by the Bank as Head of Financial Audit, with responsibility for risk-based audits of all of the business activities.
She had made a verbal protected disclosure to the Head of Legal about the use of a template for lending, which was followed up by email.
This was accepted as qualifying as a protected disclosure.
During her discussion with the Head of Legal, it was alleged she had questioned her professional abilities, and a complaint was made about this.
She was then dismissed, and the dismissal was communicated to her explaining that her manner and approach with colleagues had resulted in them not wanting to work with her.
It stated that the disclosure was not a factor and confirmed that the concerns she had raised were included in the final audit report – showing they were taking it seriously.
Essentially, they were separating the dismissal – for reasons connected with her behaviour and its effect on others – from the disclosure – which was being followed up properly.
She claimed in the Tribunal, including claims that her dismissal was automatically unfair and that she had been subjected to a detriment.
The parts of her claim related to whistleblowing failed – they concluded that the reason for dismissal was her conduct towards her colleague and not the original disclosures. Even though the Tribunal found that the Head of Legal’s motivation and her version of the meeting with Ms Kong may have been tainted by the disclosure, they held the actual decision-makers were unaware of this and their reasoning was solely their belief in Ms Kong’s conduct.
The key fact was what was in the mind of the actual decision-makers, which is a question of fact for the Tribunal to ascertain based on the evidence.
Whistle-blowers cannot have immunity for behaviour or conduct however bad that behaviour may be.
The Court of Appeal held that it is a matter of fact as to the real reason for the treatment where a protected disclosure is the context for impugned treatment. It is also a matter of fact as to whether the reasons are separate or so closely connected that a distinction cannot fairly and sensibly be drawn.
The fact that the tribunal had found that the Claimant had not behaved in a way that justified her dismissal did not mean that it was required to find that the dismissal decision was taken on the prescribed ground, so there was no automatically unfair dismissal.