The law states that one of the automatically unfair reasons for dismissal is making a protected disclosure (blowing the whistle). In Fife Council v Aitken, the Employment Appeal Tribunal (EAT) held that even if a claimant does not formally make a claim against dismissal based on whistleblowing, tribunals are still entitled to hear evidence to that effect.

Basic facts

Further to a breakdown in the relationship between Ms Aitken and the staff at the primary school where she worked, she was dismissed. This was despite the fact that an occupational health department representative had suggested she could return to work and Ms Aitken had indicated she was willing to do so. She claimed unfair dismissal and unlawful disability discrimination.

In a series of pre-hearing emails, she asserted that she had been dismissed because of disclosures she had made about the state of the heating at the school and the handling of an incident involving injury to a child. As a result, the headteacher and other colleagues had become antagonistic towards her. The school argued that she had been dismissed for capability reasons.

Tribunal decision

The tribunal agreed with Ms Aitken that the dismissal was automatically unfair on the basis that she had made protected disclosures and that she had suffered unlawful disability discrimination.

The school appealed, arguing that Ms Aitken had not pleaded unfair dismissal based on having made protected disclosures. On the contrary, it pointed to a note drawn up by the tribunal which stated that: “when pressed [Ms Aitken] indicated that … she would not formally amend her claim to add in a claim for “whistleblowing/protected disclosure”. It followed that the tribunal could not rely on evidence that supported a claim based on “protected disclosures”. Instead, it should have adjourned the proceedings and given the school a chance to consider the matter.

EAT decision

The EAT, however, disagreed. It pointed to the references to “whistleblowing” that Ms Aitken had made in her statement of further and better particulars. Although these had not “metamorphosed” into a claim based on whistleblowing, it indicated that she intended to lead evidence designed to show that she was not dismissed because of a lack of capability.

The school should not have been surprised when this was what she did, and the fact that she did not seek to advance a statutory whistleblowing case did not mean that the tribunal was bound to disregard evidence that might support that claim. Nor was the tribunal bound to adjourn the hearing when this evidence was given, not least because the school had not lodged a motion to that effect.

Ms Aitken was entitled to lead this evidence in order to demonstrate that the school’s defence was not well-founded. Although she had not amended her claim to include “whistleblowing”, her pre-hearing emails made it clear that she believed that her disclosures had influenced the decision to dismiss her.

The school therefore should have appreciated that in seeking to show that the real reason was capability, it needed to provide evidence to rebut Ms Aitken’s assertions. In other words, the onus was on the school to show that capability was the reason for dismissal. The EAT accepted that there was evidence in support of capability as the ground for dismissal, but the tribunal was entitled to conclude that the school had not discharged that onus and the true reason was therefore something else.