Labour & European Law Review Weekly Issue 373 11 June 2014
Employees who make protected disclosures (blow the whistle) can claim that they have been subjected to a detriment or unfairly dismissed. The Employment Appeal Tribunal (EAT) said in Blackbay Ventures Ltd t/a Chemistree v Gahir that when deciding whistleblowing cases, tribunals should identify each disclosure and detriment separately as well as the basis on which each disclosure was said to have been protected.
Ms Gahir started working for Chemistree, which operated a number of pharmacies, on 16 August 2010. Her main role was to ensure that the company complied with various statutory requirements and guidance. She started her actual job on 23 August 2010 after a one-week induction.
On 25 August, she sent an e-mail with regard to a number of health and safety issues, after which the company agreed to make the necessary changes to its procedures. She then sent a further e-mail on 31 August, expressing concerns that the business process outsourcing system was in breach of the Data Protection Act. The company did not agree.
On 1 September she asked for time off in lieu of overtime, but was told by her line manager that it was company policy to be paid for the extra hours worked. Ms Gahir complained about this in an e-mail the next day which she circulated widely and in which she made allegations of discrimination. The company considered it to be irrational and aggressive.
Ms Gahir was dismissed on 3 September 2010, after just 11 days in post. She claimed that she had suffered a detriment under section 47B of the Employment Rights Act (ERA) and had been dismissed unfairly for making protected disclosures under section 103A.
Under section 47B of the ERA, workers have the right not to be subjected to a detriment by any act, or any deliberate failure to act, by their employer on the ground that the worker has made a protected disclosure.
Under section 103A, an employee is unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that they made a protected disclosure.
The tribunal accepted that the company's alleged failure to "address the issues" raised in Ms Gahir’s disclosures or "deal with them adequately" amounted to a detriment as she had suffered the stress of having to continue in her job despite concerns about numerous aspects of the company's practice.
It also held that she had been dismissed because the company resented the fact that she had questioned its practices and procedures. The dismissal was automatically unfair as "the principal reason" for her dismissal was because she had made a protected disclosure.
The EAT reversed the tribunal’s decision on detriment, holding that it had failed completely to determine when the "deliberate" decision to subject Ms Gahir to a detriment short of dismissal was taken. As most of her complaints were set out in her email of 31 August, it was difficult to ascertain what detriment she had suffered between then and her dismissal on 3 September. Although the EAT found that it was “inherently unlikely” that the company would want to dismiss her for doing what she was employed to do, the tribunal’s decision in relation to her dismissal could not be said to be perverse.
Finally, it said that, when deciding whistleblowing cases, tribunals should identify each disclosure and detriment separately. Likewise the basis on which each disclosure is said to be protected and qualified should be identified as well as the alleged failure or likely failure to comply with a legal obligation.
Although there is no qualifying period of employment for a claim of automatic unfair dismissal for whistleblowing, there may be an allowance of a short period of time for employers to consider what action is necessary after a qualifying disclosure has been made. That said, in this case the period between the disclosures and the dismissal was short and included a bank holiday, and so it remains the case that employers should act promptly and without delay, especially where the disclosures give rise to a likely failure to comply with a legal obligation.