In earlier posts on this blog you will find a handful of cases which consider the distinction between the fact of a protected whistle-blowing disclosure and the manner of it. Accepted wisdom, thanks in part to the unimprovable words of then Mr Justice Underhill in Martin -v-Devonshires Solicitors here is that an employer can in principle respond negatively to the manner as distinct from the fact, but only where the manner goes well beyond the ordinary unreasonableness or aggression or inaccuracies implicit in the making of employee disclosures.
That is not just an issue of being unnecessarily persistent or irritating or throwing one’s perceived moral weight around a little – the traditional authorities suggest that the employee will only forfeit protection for “wholly unreasonable, extraneous or malicious acts“, or behaving in a way which was “untruthful or irrelevant to the task in hand” [NB. one must be careful not to extract individual words from that and rely on them to justify retaliatory action – many disclosures will contain material which is factually or legally irrelevant, for example, simply because the employee does not necessarily know the difference. It is also well established that a disclosure which is not true will not cease to be protected so long as the employee thinks it is].
Substantially identical considerations apply in relation to acts or allegations protected under the trade union or discrimination legislation – in each case,...
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