Key whistleblowing cases of 2024

These two cases are about the same legal point. The ERA provides for two different causes of action for dismissal (s103A) and detriment (s47B). A s.47B detriment claim cannot be used when the detriment in question amounts to a dismissal as there is a different cause of action for dismissal claims.  Only an employee can be dismissed so a worker who loses their job needs to bring a s47B detriment claim.  However, since Osipov, employees have been able to bring a s.47B detriment claim for the decision to dismiss taken by a co-worker, in addition to (or instead of) a s.103A dismissal claim.

Mr Rice and Ms Treadwell were both dismissed after raising concerns. Quoting Osipov, both ran a s.47B detriment claim for having been subjected to the detriment of a co-worker’s decision to dismiss them, for which the employer was vicariously liable.

In Wicked Vision, the EAT accepted that a worker can hold the employer vicariously liable for detriments by an individual co-worker under s.47B(1B). However, the EAT then said that where the detriment amounts to an unfair dismissal and where the employee can bring a dismissal claim under s.103A, they cannot bring a detriment claim for the decision to dismiss under  s.47B. Osipov was significantly restricted: “dismissal as detriment” claims could only be brought in cases where liability under s.103A was not possible. In Osipov, a s.103A claim was not possible because the company was bankrupt. In Wicked Vision, as the company and the co-worker were essentially the same (the decision-maker was the owner of the company) and as the company was not insolvent, Mr Rice was able to bring a s.103A claim and therefore could not also bring a s.47B claim for the decision to dismiss.

In Treadwell, a few months later, a different EAT went the other way and ruled against the employer. The judge stated that the EAT was bound by Osipov: employers can be held vicariously liable for the detriment of dismissal under s.47B detriment claims. The judge also held that he was not obliged to consider Wicked Vision as a binding precedent or even a persuasive authority. It is possible for an employee to bring a s.47B claim against an individual coworker for subjecting them to the detriment of dismissal, and to bring a claim of vicarious liability for that act against the employer. All that s.47B excludes is a claim against the employer in respect of its own act of dismissal.

Both cases have been joined and will be heard by the Court of Appeal in early 2025. Protect has been granted permission to intervene.

Mr Nicol had raised concerns to HR consultants about his CEO’s managerial style . The CEO was informed that concerns had been raised about her but was not told about their substance. Shortly afterwards, Mr Nicol was dismissed. Mr Nicol lost his s.103A dismissal claim because the ET found that the decision-maker—the CEO—had not been aware of the substance of the protected disclosure.

Mr Nicol appealed on the grounds that as long as a protected disclosure had been made to his employer (the HR consultants), and the decision-maker (the CEO) knew that a disclosure had been made, then the decision-maker did not need to know the substance of the disclosure to be liable for the retaliation.

On appeal, the EAT upheld the ET’s decision. It held that employers must have at least some knowledge about the substance of the disclosure to be liable for unfair dismissal arising from it. Mere awareness that a concern had been raised is not sufficient to establish causation.

Dr William was working at an NHS trust when she had an altercation with a colleague. Dr William then made several protected disclosures about the colleague’s clinical practice. During an investigation into the altercation, she was suspended by the manager overseeing the investigation.

Dr William lost her detriment claim against her employer on the grounds that the decision-maker did not know about the protected disclosure, and they must know about the protected disclosure for it to have exerted a material influence on the detriment. Citing the EAT’s decision in Malik v Centros Securities plc, the ET held that the knowledge and motivation of another individual who influenced the decision-maker could not be attributed to the decision-maker in detriment claims.

Dr William argued that the ET should consider Jhuti, where the decision-maker was not motivated by the protected disclosure but was manipulated into carrying out the dismissal by a third party who was motivated by the disclosure, and the court attributed the third party’s motive to the dismissal. However, the ET stated that Jhuti only applies to dismissal claims, not detriment claims, because in dismissal claims, only the employer can be held liable. In detriment claims, however, there is a separate means for bringing claims against the individual “manipulator” who convinced an innocent decision-maker to carry out the detriment, for which the employer can be held vicariously liable.

The EAT upheld the ET’s decision and dismissed Dr William’s appeal.

The EAT held that an employer had victimised a worker, Mr Moussa, because of whistleblowing disclosures which he had made six years previously, even though the individual responsible for the victimisation had not personally known about Mr Moussa’s whistleblowing.

Prior to this incident, Mr Moussa had won an automatic whistleblowing dismissal claim and was reinstated in his job. Following an incident four years later, Mr Moussa was suspended. He lodged a claim for whistleblowing detriment.

The ET found that the employer had indeed unfairly suspended Mr Moussa and had conducted an inadequate and biased investigation because of his past whistleblowing. The myriad examples of unfairness could not be explained as a series of unfortunate errors. There was no conspiracy between a “manipulator” and an innocent decision-maker with no knowledge of the whistleblowing, as in Jhuti, yet the Tribunal found that there was an underlying negative attitude towards Mr Moussa because he had blown the whistle in the past.

The employer appealed, arguing that they were not liable for whistleblowing detriment as the decision-maker who suspended Mr Moussa had not personally known about his previous whistleblowing disclosures. The EAT dismissed the appeal, as there was a “collective memory” at the organisation which was prejudiced against Mr Moussa, and this had permeated the approach of the HR department. This was a factual determination for the employment tribunal to make, and there had been no error of law.

Dr MacLennan argued that he had lost his membership of the British Psychological Society and his position as a trustee after he reported concerns about the running of the charity. He made his disclosures after he had been elected as President-elect of the charity, before his tenure as President began.

At an initial ET hearing, the Tribunal found that Dr MacLennan was never a “worker” of BPS and he was therefore not protected by whistleblowing legislation.

Protect intervened in the case, applying the arguments raised in the Supreme Court case of Gilham, which enables those who are in an analogous situation to “workers” to argue that they should be able to bring whistleblowing claims using Article 10 and 14 of the European Convention on Human Rights (ECHR).

The EAT found in favour of Dr MacLennan, asserting that charity trustees who do not qualify as workers in a traditional sense may still be entitled to whistleblowing protections. The EAT determined that there is a strong argument that being a charity trustee is akin to an occupational status, which could unlock the door to protection. Although Dr MacLennan was unpaid, the EAT found that this was not determinative: the judgment directs Employment Tribunals to consider other relevant factors. These include the chances that someone will discover wrongdoing and their vulnerability to retaliation for whistleblowing, which could impact their livelihood or, as in this case, their professional reputation. There are other legal issues to factor in before protection is formally granted, but this is a strong indication that some charity trustees may be protected going forward.

This judgment also establishes a precedent for workers to be protected from being subject to a detriment by their current employer for making a protected disclosure to that employer prior to the commencement of the employment.

In April 2020, during the coronavirus pandemic, Mr Ritson was placed on furlough leave by his employer. When Mr Ritson’s manager asked him to continue working on a project despite furlough, Mr Ritson queried this via text message and advised his employer that this might be in breach of the Coronavirus Job Retention Scheme. He was made redundant shortly afterwards. Mr Ritson brought unfair dismissal claims, which were dismissed by the Employment ‘Tribunal; he then appealed.

The EAT upheld the ET decision that Mr Ritson’s text messages to his employer were not qualifying disclosures: Mr Ritson had satisfied neither the public interest test, nor the breach of a legal obligation test. The ET found that the only interests he had in mind were his own, and that the disclosures were too vague, as they did not point to a “probable” (as in “more likely than not”) breach of a legal obligation. To be protected, the worker needs to show that he had a reasonable belief that the breach was likely to occur, and that he subjectively believed that the disclosure was in the public interest. Moreover, the Tribunal found that the principal reason for the dismissal was a genuine redundancy situation, not the text messages.

The European Convention of Human Rights (ECHR) enshrines freedom of expression in its Article 10 including the right to impart information and ideas. However, it is a qualified right, meaning that it can be restricted to protect other rights, including confidentiality in an employment context. It is often used in whistleblowing cases, especially in countries which do not have whistleblowing domestic legal protection. Mr Aghajanvan was employed at a chemical products factory part-owned by the Armenian government. His employment contract prohibited the disclosure of State, professional or commercial secrets.

From 2006 onwards, Mr Aghajanyan made several reports to his employer raising environmental and health and safety concerns about the factory. After 4 years, in 2010, Mr Aghajanyan gave an interview to a local newspaper about it. Shortly after the article was published, Mr Aghajanyan was dismissed for disseminating false information and breaching his contractual confidentiality provisions.

Mr Aghajanyan appealed to the European Court of Human Rights (ECtHR)after his claims were dismissed in the Armenian courts, where he was not entitled to whistleblowing protection under Armenian law. Mr Aghajanyan claimed that his dismissal breached his Article 10 rights and that he was acting as a whistleblower, only going public after his employer had ignored numerous disclosures of public interest concerns.

The ECtHR held that the dismissal of an employee for giving a newspaper interview in this particular case was a breach of his right to freedom of expression under Article 10 of the ECHR. There is often a tension between an employee’s duty of loyalty and confidentiality towards their employer and the employee’s right to freedom of expression under Article 10: here, the ECtHR found that the domestic courts had not struck a fair balance between these competing interests. Though highly sensitive information had been disclosed, Mr Aghajanyan had raised important public interest matters. Moreover, the domestic courts had failed to consider the principles established by case law under the ECtHR. These include whether any harm had been sustained by the employer, whether its actions were proportionate, and whether the claimant acted in good faith.

Ms Sullivan made two unsuccessful applications to the Isle of Wight Council for financial roles. She raised concerns with the Council regarding a verbal assault during an interview and made allegations of financial impropriety. Ms Sullivan included these disclosures in a letter which she sent to her MP.

Ms Sullivan was refused an appeal in respect of her concerns under the Council’s Complaints Policy. She brought a whistleblowing detriment claim in an ET, alleging that this refusal was due to her protected disclosures. Ms Sullivan accepted she was not a “worker” and therefore not protected by UK whistleblowing law, but she claimed that this lack of protection was a breach of her ECHR rights to freedom of expression and freedom from discrimination. She compared herself to internal job applicants and NHS job applicants (who are protected under section 49B of the Employment Rights Act).

The EAT upheld the ET decision to dismiss Ms Sullivan’s claim. As an external applicant, the Tribunal found that Ms Sullivan was not in an equivalent situation to internal applicants, who are already embedded in an organisation and are entitled to whistleblowing protection as workers. Ms Sullivan’s status as an applicant for a financial role in the Council was also not analogous to an applicant to the NHS: Parliament decided to grant extra protection for job applicants to the NHS due to patient safety considerations which were not relevant to this case. The EAT ruled that it would not have been proportionate to amend the definition of “worker” to permit Ms Sullivan’s claim.

The Court of Appeal allowed the appeal, which will be heard in early 2025. Protect has been given permission to intervene.