Background
The Claimant was employed by the Respondent from 21 November 2018 until her dismissal on 11 June 2020.
The Respondent had ongoing concerns about the Claimant’s standard of work. As a result, a subcontractor was asked to carry out a “peer review” of the Claimant’s work after several mistakes were identified. The Claimant was unhappy about her work being reviewed in this way.
When the Claimant returned to the office following the COVID‑19 pandemic, she was issued with a verbal warning for her work not meeting the expected standard. Still unhappy with the subcontractor reviewing her work, the Claimant requested a meeting with the Respondent. Before that meeting, she researched the subcontractor on Companies House and discovered that he was disqualified from acting as a company director yet still appeared to hold a directorship in a company linked to his wife. She also learned that he was not a member of the Association of Chartered Certified Accountants (ACCA). The Claimant raised these concerns during the meeting and again in an email on the same day.
Following this, the Respondent continued to monitor the Claimant’s performance. She continued to make mistakes, and there was ongoing friction between the Claimant and the subcontractor. The Respondent ultimately decided to terminate her employment with immediate effect on 11 June 2020.
The Claimant subsequently brought claims for:
- Automatic unfair dismissal for making a protected disclosure (whistleblowing), under section 103A of the Employment Rights Act 1996 (“ERA”);
- Suffering a detriment due to whistleblowing, under section 47B of the ERA; and
- Automatic unfair dismissal on health and safety grounds, under section 100(1)(d) of the ERA.
The Tribunal decision
The Tribunal concluded that although the Claimant had provided information to the Respondent, she did so to further her own interests rather than the public interest. As a result, the disclosure did not amount to a protected disclosure. Consequently, the Tribunal did not go on to assess whether she had suffered any detriment or consider her claim under section 47B of the ERA. It determined that her dismissal arose from poor performance rather than any alleged whistleblowing.
The Claimant appealed this decision.
The Tribunal had also dismissed the claim under section 100(1)(d), but that issue was not pursued on appeal.
The Employment Appeal Tribunal decision
The EAT upheld the Tribunal’s conclusion that the protected disclosure was not the principal reason for the Claimant’s dismissal. It agreed that the dismissal stemmed from concerns about her performance and her difficult working relationship with the subcontractor, noting that most of these issues had arisen prior to any disclosure having been made.
However, with regard to the claim under section 47B, the EAT found that the Tribunal had erred in law. It had failed to make necessary findings regarding the Claimant’s subjective belief when making the disclosure and had wrongly substituted its own view when assessing whether her belief in the public‑interest nature of the disclosure was reasonable. The Tribunal had not properly considered whether the Claimant genuinely believed the disclosure to be in the public interest, nor whether such a belief would have been reasonable for someone in her position.
The detriment claim was therefore remitted to a different Tribunal for reconsideration.
Takeaways
Employers should be mindful that, when dealing with whistleblowing claims, Tribunals will closely assess the employee’s subjective belief that disclosure was in the public interest and state of mind at the time the disclosure was made. It is not enough for an employer to assume that a disclosure falls outside the public interest; what matters is whether the employee genuinely believed it to be in the public interest and whether that belief was reasonably held. Ensuring that concerns are handled carefully and fairly can help reduce the risk of whistleblowing detriment findings, even where dismissal is ultimately based on performance issues.
