451: Manipulation of decision-maker not relevant in whistleblowing detriment claim (EAT)
Under the Employment Rights Act 1996 (ERA), employees must not be subjected to a detriment by their employer or a colleague on the grounds that they have made a protected disclosure (section 47B). Separate provisions of the ERA apply where the detriment amounts to a dismissal, which will be automatically unfair (section 103A). In situations involving whistleblowing, the managers responsible for imposing a detriment or dismissal may not know about the disclosure. However, they could be manipulated by others who are aware of and motivated by the disclosure. The recent case of William v Lewisham and Greenwich NHS Trust highlights that the manipulation of a decision-maker in this way is dealt with differently depending on whether a whistleblowing claim is for detriment or dismissal.
Dr William, an NHS consultant, made a health and safety disclosure about a colleague’s clinical practice. The Trust subsequently conducted a formal standards investigation against Dr William in relation to various matters, including a confrontation which had taken place with the colleague. Dr William was suspended for several months whilst the investigation and disciplinary proceedings took place, after which she was given a written warning. She brought a claim alleging that she had been subjected to detriments by the Trust on the grounds that she had made a protected disclosure.
The Employment Tribunal agreed that Dr William had made a protected disclosure, and that she had been subjected to a series of detriments. However, the Tribunal dismissed her claim because there was no evidence that the detriments had been influenced in any way by her protected disclosure.
On appeal, Dr William argued that even if the decision-makers who had imposed the detriments were not materially influenced by her disclosure, they had been manipulated and misled by colleagues who gave them false information and encouraged them to take action against her. Dr William tried to rely on the Supreme Court’s decision in Royal Mail Group v Jhuti which established that in a whistleblowing unfair dismissal claim, an employer can be liable where the dismissing manager had no knowledge of a protected disclosure but acted on information from someone who did know and was motivated by it. She argued that this reasoning should apply to whistleblowing detriment as well as dismissal cases.
The EAT dismissed this argument. The Employment Tribunal had correctly applied the EAT’s previous decision in Malik v Centros Securities plc which established that if a manager makes a decision to subject an employee to a detriment without knowing that they have made a protected disclosure, the knowledge and motivation of someone who influenced that decision is irrelevant. This is because individuals can be personally liable in detriment claims, so anyone who has manipulated a process can be pursued separately. The EAT confirmed that the Jhuti decision only applies to whistleblowing unfair dismissal claims, where liability rests solely with the employer and not with any individual. In any event, the evidence showed that although Dr William had made a protected disclosure and been subjected to detriments, they had not been motivated to any extent by that disclosure.
This decision confirms that causation is treated differently in whistleblowing detriment and dismissal claims on the basis that an employee can bring a separate detriment claim against an alleged manipulator personally as an individual respondent, whereas dismissal claims may only be brought against the employer. Dr William had not joined the alleged manipulator individuals as respondents. In any event, however, there was no evidence that any detriments were motivated by the fact that she had made a protected disclosure, nor that the decision-makers had hidden behind an invented reason. This case also highlights the importance of ensuring that the disciplinary procedure and any decision to impose sanctions are properly reasoned and documented at each stage of the process.