Whistleblowing/Public interest disclosures
In Royal Mail Ltd v Jhuti [2018] IRLR 251 CA, the Court of Appeal held that the motivation of a manager who manipulated evidence to procure the dismissal of a whistleblowing employee could not be attributed to the employer, as the decision to dismiss was taken by a manager who was not motivated by the employee's protected disclosures.
In Chesterton Global Ltd and another v Nurmohamed [2017] IRLR 837 CA, the Court of Appeal held that an employment tribunal had made no error in law when it held that an employee's disclosure, which engaged the interests of 100 managers of a national estate agency, was made "in the public interest" and protected under the whistleblowing legislation.
In Day v Health Education England and others [2017] IRLR 623 CA, the Court of Appeal held that a trainee doctor was not prevented from bringing a whistleblowing claim against the third-party introducer by the fact that he was engaged as a worker by the hospital trust to which he was assigned. His claim could proceed if the introducer could be said to substantially determine the conditions under which he worked in accordance with s.43K of the Employment Rights Act 1996.
The Court of Appeal has held that a claimant cannot succeed in a whistleblowing unfair dismissal claim where the decision-maker was unaware of the protected disclosure at the time of the decision to dismiss.
The Court of Appeal upheld the decision of the employment tribunal that disclosures made by a worker satisfied the "public interest" requirement for protection under the whistleblowing provisions of the Employment Rights Act 1996. The disclosures related to a breach of the employment contracts of 100 senior managers, including the whistleblower.
The Court of Appeal has held that, where the reason or principal reason for a dismissal is because the employee made a disclosure, the question of whether or not that disclosure is protected falls to be determined objectively by the tribunal, and not the employer.
The Court of Appeal has held that the employment tribunal incorrectly struck out the appellant's claim against Health Education England (HEE). The Court remitted the claim to a fresh tribunal to decide, as a preliminary issue, if the appellant was a worker in relation to HEE under the whistleblowing provisions of the Employment Rights Act 1996.
Chris Cook is a partner and Keely Rushmore is a senior associate at SA Law. They round up the latest rulings.
In McTigue v University Hospital Bristol NHS Foundation Trust [2016] IRLR 742 EAT, the EAT held that, in order for a claimant to be a "worker" within the meaning of the extended "whistleblower" definition in s.43K of the Employment Rights Act 1996, all that is required is that the end user substantially determined the terms under which the claimant carried out his or her work. It is not necessary to show that the end user determined those terms to any greater or lesser degree than the agency, of whom the claimant might also be an employee or worker.
Chris Cook is partner and head of employment and Keely Rushmore is senior associate at SA Law. They round up the latest rulings.
Employment law cases: HR and legal information and guidance relating to whistleblowing/Public interest disclosures.