Whistleblowing and the Importance of Proving Motive – Guideline Ruling

Establishing that an employee has made a protected disclosure is the first step on the path to success in any whistleblowing claim. However, as a case concerning a dismissed care homes manager showed, it is often much harder to prove that detrimental treatment is motivated by such a…

Mar 16, 2023

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Establishing that an employee has made a protected disclosure is the first step on the path to success in any whistleblowing claim. However, as a case concerning a dismissed care homes manager showed, it is often much harder to prove that detrimental treatment is motivated by such a disclosure.

The woman had been in post for only about six months when she was dismissed at the end of her probationary period. Her employer asserted that she was dismissed on grounds of capability or performance. She contended, however, that the motive underlying her dismissal was that she had made protected disclosures by raising concerns that understaffing was putting residents’ safety at risk.

Following a hearing, an Employment Tribunal (ET) found that she had made a single protected disclosure. In rejecting her claim of automatic unfair dismissal, however, it found that the disclosure played no part whatsoever in the decision to terminate her contract. The decision-maker was wholly uninfluenced by the disclosure and the reason for her dismissal was, as the employer contended, her lack of capability.

Upholding her challenge to that outcome, the Employment Appeal Tribunal noted that the decision-maker had in part relied on a probation report prepared by the woman’s former line manager. It was the central plank of the woman’s case that it was the report that prompted her dismissal and that, in writing it, the line manager was herself influenced by the disclosure.

In asking itself whether the disclosure was the principal reason for her dismissal, the ET was thus required explicitly to consider the motives of not only the decision-maker but also the line manager. The ET had not spelt out in its decision that it had taken that course. The issue was sent back to the same, or a similarly constituted, ET for fresh consideration.

Non-Executive Directors and ‘Worker’ Status – Guideline Ruling

Can a non-executive director who receives no more than an honorarium for services that he provides voluntarily enjoy the protected status of a ‘worker’? That was the thorny issue addressed by the Employment Appeal Tribunal (EAT) in a guideline case. The case concerned a professional who was appointed to a four-year non-executive directorship of a national sporting body. In Employment Tribunal (ET) proceedings, he alleged that he had been subjected to detriments for whistleblowing. His claim…

Not Every Accident Can be Explained – Workplace Head Injuries Ruling

Judges are experts at uncovering the truth but, in rare cases, it is simply not possible to decisively establish the cause of an accident. That was so in the case of an HGV driver who had no memory of an incident which left him with life-changing head injuries. The man had been cleaning his tractor unit before he was found unconscious in the yard of the crane hire company he worked for. Due to the severity of his head injuries, he had no recollection of how he suffered two blows with a hard,…

Resignation in the Heat of the Moment – EAT Sets Out the Legal Principles

When an employee utters words of resignation in the heat of the moment, employers are often left in doubt as to whether they should take them at face value. In an important ruling, the Employment Appeal Tribunal (EAT) has for the first time drawn together the legal principles that apply to such cases. A community advice centre employee said words of resignation after an altercation with his line manager, giving one month’s notice of his departure. The precise words that he used were disputed.…