Whistleblowing: Was a decision to dismiss materially influenced by whistleblowing disclosures?

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Whistleblowing: Was a decision to dismiss materially influenced by whistleblowing disclosures?

Published 6 July 2021

The decision to dismiss a whistleblower was influenced entirely by his behaviour after he had blown the whistle.  This behaviour was separate and distinct from the whistleblowing, the dismissal was not automatically unfair.

THE FACTS  

Mr Watson joined Hilary Meredith Solicitors Ltd as its CEO. He brought in a new Finance Director, who quickly uncovered some financial irregularities.  The Finance Director and Mr Watson told Hilary Meredith, who is the founder of the firm and its Chair, about these irregularities.   Both the Finance Director and Mr Watson gave notice of their resignation swiftly afterwards.

Mr Watson was initially put on garden leave.  For a while, the relationship between Hilary Meredith and Mr Watson remained friendly, and she tried to persuade him to stay and help the business sort out the problems.  He would not do so and, when he was instructed to return to work, he refused.  Settlement negotiations were unsuccessful, and Mr Watson was summarily dismissed for gross misconduct.   

Mr Watson claimed in the employment tribunal that he had been dismissed because, in reporting the financial irregularities, he had been a whistleblower.  The tribunal dismissed his claim and he appealed to the EAT.

The central issue for the tribunal had been whether the dismissal and associated detriments had been “materially influenced” by the whistleblowing.  If this had been the case, the dismissal would have been a whistleblowing dismissal and therefore automatically unfair.  However, had Mr Watson  been dismissed (as Hilary Meredith had argued was the case) because he had “run for the hills” rather than staying to help the business out of its difficulties, this would not have been a whistleblowing dismissal.

The EAT reviewed the tribunal’s decision, and dismissed the appeal.  Key to the EAT’s decision were the tribunals’ findings  that Hilary Meredith did not at any stage criticise Mr Watson for disclosing the accounting problems, she herself was not at fault in relation to the irregularities, and she had investigated the concerns and had not tried to cover them up.  Her relationship with Mr Watson in the aftermath of the disclosures had been amicable, and it had only deteriorated when she had reflected on events and decided that she was not happy that his response had been to “run for the hills” and resign, rather than trying to help the business.  Her thoughts on this were valid and understandable.

The EAT therefore considered that the employment tribunal was entitled to dismiss Mr Watson’s whistleblowing claim on the basis that the dismissal was not materially influenced by the whistleblowing but was influenced entirely by his behaviour following the disclosures, and specifically his decision to resign rather than stay on and help the business with the difficulties.  This behaviour was separate and distinct from the whistleblowing. 

WHAT DOES THIS MEAN FOR EMPLOYERS?

While employers should be cautious in deciding to dismiss an employee in the context of whistleblowing (or to subject them to any other detriment) this is another case which shows that there are circumstances under which the behaviour of the employee can be separated from the whistleblowing disclosures and action taken against them.  The test is whether or not the whistleblowing has more than a trivial influence on the decision to take action against the employee.

Mr P Watson v 1) Hilary Meredith Solicitors Ltd 2) Ms H Meredith UKEAT/009/20/BA(V)

 

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

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