In this case, the Employment Appeal Tribunal (EAT) upheld a finding of automatic unfair dismissal for making protected disclosures, after a family support worker was summarily dismissed on the same day she raised safeguarding concerns, rejecting arguments that the tribunal’s reasoning was perverse or insufficient.
Legal background
Whistleblowing legislation protects workers who make “protected disclosures.” In order to be a protected disclosure, the disclosure must contain information, the worker must reasonably believe it is made in the public interest, and it must tend to show certain wrongdoing (e.g. health and safety endangerment). The disclosure must then be made to the right body/ person. A dismissal is automatically unfair if the principal reason for dismissal is that the employee made a protected disclosure.
Facts
The claimant, a family support worker, raised safeguarding concerns about a colleague, alleging recreational drug use and having observed him attend work on a “come down”. She first reported this to the deputy manager, Ms Wilkinson, on 22 August 2022. Concerned that no action had been taken, she repeated the disclosure to AC, the independent visitor responsible for safeguarding reporting to the regulator, on 13 September 2022. Later that day, she was called into a meeting with Ms Wilkinson and a director and was summarily dismissed without being given an opportunity to respond to the allegations. The dismissal letter cited issues including medication recording and leaving the premises without authorisation which put the residents at risk (which the employer relied on in tribunal as the alleged misconduct / principal reason for dismissal). The claimant's attempts to appeal the dismissal were rejected, with the employer stating she had not provided a full appeal within seven days.
The tribunal found that the claimant’s 22 August conversation with Ms Wilkinson was a disclosure of information tending to show a health and safety risk, made with a reasonable belief that it was in the public interest. The same applied to the disclosure to AC on 13 September. AC was bound to report safeguarding concerns to both the employer and the regulator, meaning the disclosure to him was also a protected disclosure. The tribunal, by a majority, rejected the employer’s stated reasons and found that the real and principal reason for dismissal was the protected disclosures and was therefore automatically unfair. Key factors included:
- Dismissal occurred within hours of the disclosure to AC
- Ms Wilkinson’s evidence on what she knew and when was not found to be credible
- The medication issue had previously been treated as a training matter, not live misconduct
- No adequate evidence supported allegations about unauthorised absence or risk to residents
The employment tribunal also found the appeal handling to be a detriment linked to the claimant's disclosures.
The employer appealed on the grounds that the tribunal's findings were perverse and that it had misdirected itself when considering what constituted the principal reason for dismissal. The EAT held that the tribunal’s findings were not perverse: the majority had evidence available to support their conclusions, and it was not the EAT’s role to re-weigh conflicting evidence. In addition, the tribunal had addressed each alleged misconduct issue and was entitled to conclude these were not the genuine reason for dismissal.
What does this mean for employers?
This decision highlights the risks for employers where whistleblowing disclosures trigger swift disciplinary action and where internal procedures around escalation, investigation and appeals are not followed. The way an employer responds, including how it conducts disciplinary and appeal processes, will be relevant to the overall assessment of whether the treatment was linked to the disclosure.
The threshold for overturning a tribunal decision on perversity grounds is high, appellate courts will not interfere where findings are supported by evidence.
Employers should treat safeguarding and other risk-related disclosures with care. Where concerns relate to resident/client safety, health or safeguarding, employers should promptly assess whether the disclosure is potentially protected and follow internal and statutory procedures.
The timing of the dismissal here (same day as the disclosure) was highly influential in the overall tribunal decision. Employers should avoid making immediate disciplinary decisions following a disclosure and instead separate the issues, investigate both the disclosure and any alleged misconduct, and record the rationale. Clear, contemporaneous documentation and consistent treatment of issues will be critical to the defence.
Appeal processes should also be followed especially where whistleblowing is alleged. Not hearing an appeal on a technicality is risky. The tribunal found the employer’s insistence on “full grounds within seven days” to be unsupported by any policy and inconsistent with the dismissal letter.
