Two months’ ago, in the case of Kong v Gulf International Bank, we reviewed a case where the Employment Appeal Tribunal (EAT) had to consider whether the ‘protected disclosure’ of a whistleblower was the reason for her dismissal. The EAT found that even though her protected disclosure was the reason for the poor treatment she received from a head of department, it was not the reason for her dismissal. Instead, her dismissal was because of her conduct towards her colleagues. In the case of Secure Care UK Ltd v Mott, the EAT has had to clarify the two different tests applied to an employer’s reasoning when:
When it comes to detriment cases, the test is more employee friendly. It reflects discrimination law and is based on the reasoning that detriments towards whistleblowers should not be tolerated. If an employee’s whistleblowing ‘materially influences’ the employer’s decision to subject them to a detriment, then protection will apply.
Conversely, when it comes to a dismissal of a whistleblower, tribunals move into ‘the general run of unfair dismissal law’. An employee will only be protected from an automatic unfair dismissal on account of having blown the whistle if their protected disclosure was the ‘principal reason’ for their dismissal.
The logic here can be seen in situations where someone blowing the whistle is being investigated for...
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