Dismissal claims – the law
It is unlawful for your employer to dismiss you, make you redundant or force you to resign because you raised a whistleblowing concern. Please see here for our webpage on practical next steps if you have been dismissed for whistleblowing.
The following information is intended for those who are preparing to bring an employment tribunal claim for dismissal for whistleblowing. Please note whistleblowing claims are often complex – if you want to discuss your situation in more detail, please contact our Advice Line. If you are dismissed for whistleblowing (in legal terms “making a protected disclosure”), you could consider bringing an interim relief claim which, if you are successful, means your contract – and pay – continue while you wait for a full hearing. However, you must act fast – the time limits for this are 7 days from your dismissal so do seek advice from Protect.
If you’re not an employee and only qualify as a worker, you cannot bring a dismissal claim but you may be able to bring a detriment (otherwise known as victimisation) claim – see here for our webpage on detriment claims.
There may be other claims which are relevant to your situation, such as ordinary unfair dismissal if you have been employed for more than two years, claims under the Equality Act 2010 if you have experienced discrimination or claims under section 44 and section 100 of the Employment Rights Act 1996 in some circumstances where you have been raising concerns about health and safety at work. Protect does not advise on these claims – for more information please visit this webpage for the details of other advice services who may be able to assist you.
Automatic unfair dismissal
You can bring a claim against your ex-employer for having dismissed you because you blew the whistle as it is automatically unfair to do so. Automatic unfair dismissal claims are made under section 103A of the Employment Rights Act.
To bring this type of claim you must be an employee and you must have made a protected disclosure (the legal term for whistleblowing). The protected disclosure does not have to have been made to your employer; you may have been dismissed for making a disclosure to an external body or for having made a protected disclosure to a previous employer (BP plc v Elstone and another UKEAT/0141/09.) However, the whistleblowing needs to be the sole or principal reason for the dismissal. You have 3 months minus one day from the date of your effective dismissal to bring a claim in the Employment Tribunal. If you are unsure of when this would be, contact Protect’s Advice Line. We have a guide on how to fill an ET1 form which you can find here as well as a webpage on remedies and compensation available for whistleblowing claims here.
Unlike ordinary unfair dismissal claims, a dismissal for whistleblowing is automatically unfair – this means there is no minimum amount of time you need to have worked for your employer to make the claim – this is sometimes called a ‘day one right’.
To be successful in a claim for automatic unfair dismissal for whistleblowing, the reason or main/principal reason for your dismissal must be because of your protected disclosure. This is a high threshold to meet because employers can often find credible other reasons to justify why they dismiss someone. If your employer can show that there was some other fair reason for your dismissal, then your claim will not succeed. If you have made multiple protected disclosures, they may together be the reason for your dismissal.
Evidence which can support your argument that you were dismissed for whistleblowing include:
Can I be dismissed for the way I blew the whistle?
Whistleblowing law does not shield you from your own genuine misconduct. It is also possible for a claim of automatic unfair dismissal to fail if the tribunal finds that your employer dismissed you for your conduct when making a protected disclosure. This may include if you hack into work systems to substantiate your concern or use threatening or discriminatory language when making your disclosure.
In Kong v Gulf International Bank (UK) Ltd  EWCA Civ 94, Ms Kong claimed that she had been automatically unfairly dismissed due to raising whistleblowing concerns to the Head of Legal about the illegality of a product her employer was about to start selling. The employer’s defence was that the dismissal was not due to Ms Kong raising concerns, but because when doing so she questioned the legal awareness of the Head of Legal and was insensitive in her manners and approach. This was found to be the reason for the dismissal and was deemed to be separate conduct from Ms Kong’s protected disclosures. Protected disclosures typically involve criticism of a colleague(s)’ actions meaning whistleblowers can often upset, offend or embarrass a colleague for drawing attention to their wrongdoing. It is therefore particularly important to remain professional when raising concerns and not directly critiquing individuals unless necessary for raising the wrongdoing. If a whistleblower’s conduct is blameless, or does not go beyond ordinary unreasonableness, it is far less likely that it will be found to be the real reason for the employer’s actions.
There are two situations where a redundancy could in fact amount to automatic unfair dismissal for whistleblowing. These are:
These claims are not straightforward so do call the Advice Line to discuss with an adviser.
Automatic unfair constructive dismissal
An employee is considered dismissed when the employee terminates their own employment contract because of their employer’s conduct towards them. If you are considering resigning from your role following whistleblowing, seek advice from Protect urgently.
When an employee resigns, they usually cannot claim unfair dismissal: a resignation means it was the employee who decided to terminate the employment contract. However, sometimes employees can claim they were in effect forced to resign and that their resignation is a ‘constructive’ dismissal and must be treated (constructed) like a dismissal.
A dismissal only occurs where it is the employer who terminates the contract. An automatic unfair constructive dismissal claim for whistleblowing is a claim that the employer’s conduct (in response to the whistleblowing) was so bad that it seriously breached the employment contract, meaning that the employee was entitled to treat the contract as having ended and then resign. To be successful you need to have made a protected disclosure and been victimised for doing so. The reason for the employer’s poor treatment must have been the protected disclosure you made, rather than personal disputes or allegations of misconduct. There are also three additional elements to satisfy:
To help demonstrate that the poor treatment was caused by the protected disclosure, it is important to show there has been a significant change in your employer’s behaviour before and after you blew the whistle.
The employer’s damaging conduct can be a one-off act or a series of acts that collectively amount to a sufficiently serious breach of your employment contract. For example, if you are locked out of all your work systems, making it impossible to do your job, that may be considered a sufficiently serious one-off act. Alternatively, if, for an extended period, your pay has been reduced and projects have been taken off you for no legitimate reason, these acts collectively could amount to a serious breach. But it is not enough for your employer to have acted unreasonably, or for you to prove that you suffered whistleblower victimisation. You need to have been subjected to serious detriment(s) to claim that this means your employer has in effect constructively dismissed you.
Resignation in response to the breach
The negative treatment you suffer must be sufficiently serious, otherwise you will not succeed in an automatic constructive dismissal claim for whistleblowing. The negative treatment must also be caused by your whistleblowing so if you have historically had a difficult relationship with your employer, or the breaches of your employment contract were motivated by other factors (e.g. personal relationships breaking down or professional disagreements) then it will be harder to show the negative treatment that led to your resignation was caused by you having blown the whistle.
This means the Employment Tribunal will assess:
Therefore, it is usually advisable to set out in your resignation letter the fundamental breaches of contract you think your employer has committed because of the disclosure you made and express in it very clearly that these breaches make it impossible for you to continue to work and therefore forces you to resign.
Affirmation of the contract
If your behaviour in some way appears to agree with or endorse your employer’s conduct, then your claim for constructive dismissal may fail. For example, delaying your resignation a long time after your victimisation: if you continue to work and so abide by the terms of your employment contract after the negative treatment, the tribunal may decide that you have accepted or “affirmed” the breach of your employment contract. The longer you wait to resign after the mistreatment you want to complain about, the harder it will be for you to convince the employment tribunal judge that it was the mistreatment that forced you to resign. You should act in the next few days otherwise the risk is that the tribunal will consider you accepted the treatment and/or you resigned for another reason.
What are the time limits for bringing my claim?
You have 3 months minus one day from the date of your effective dismissal to bring a claim in the Employment Tribunal. If you are unsure of when this would be, contact Protect’s Advice Line. We have a guide on how to fill an ET1 form which you can find here as well as a webpage on remedies and compensation available for whistleblowing claims here.
You should follow the Acas Code of Practice on grievance procedures as this can affect the level of compensation you receive should you win at the Employment Tribunal.