When considering a claim for protected disclosures (blowing the whistle), the EAT held in Fitzmaurice v Luton Irish Forum that tribunals must focus on whether the disclosure constituted a “material factor” in the dismissal, as opposed to the sole reason for it.
Ms Fitzmaurice, a caseworker at a small charity, raised a number of concerns about health and safety issues in 2014, and again in 2016 and 2017. During the course of a grievance hearing in 2017 mainly about her pay, she raised concerns about the use of the charity’s reserve funds to pay for someone who had just been recruited.
At meetings on 31 July and 25 August that year, she threatened to go to the Charity Commission with her concerns about the organisations finances and indicated that trustees might lose their houses as a result. At the meeting on 31 July, she also referred to a Polish colleague as a “Hitler henchman”.
Following the instigation of disciplinary proceedings, Ms Fitzmaurice resigned. She brought claims of constructive dismissal and automatically unfair dismissal on the basis that she had made protected disclosures under section 47B of the Employment Rights Act 1996 (ERA), among other things.
Section 103A ERA states that it is automatically unfair to dismiss an employee “if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”.
Section 47B(1) states that a “worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his [sic] employer done on the ground that the worker has made a protected disclosure”.
Case law makes clear that there is a breach of section 47B if the protected disclosure “materially inﬂuences” (in the sense of being more than a trivial inﬂuence) the employer's treatment of the whistleblower.
Although the tribunal accepted that some of the issues raised by Ms Fitzmaurice constituted protected disclosures (such as the way the trust’s funding was being used), they were not the primary reason for the disciplinary action. Instead, it was prompted by her behaviour at the meetings in July and August.
As the disclosures were not the sole cause of any actions taken by the charity, her claim could not succeed.
Overturning the tribunal decision, the EAT held that it had not properly analysed where the dividing line fell between the disclosures that were made and the manner in which they were made. This included Ms Fitzmaurice’s threat to make contact with the charity commissioners and the consequences that could have for the trustees, including the possibility of losing their homes.
Instead of focusing on whether the protected disclosures constituted a “material factor” in the dismissal, the tribunal had focused on whether it was the reason for it. As a result, it had failed to appreciate that the claim could be made out if Ms Fitzmaurice could show that making the protected disclosure was a material factor in bringing about the dismissal. The test was whether there were other factors in the mix which could be separated off from the protected disclosure and identified as the reason for the disciplinary action and subsequent dismissal.
The EAT remitted the matter to the same tribunal for reconsideration. In particular, it said that the tribunal needed to consider whether the protected disclosures were a material factor in starting and continuing the disciplinary proceedings, and whether any actions taken in response to the protected disclosures could give rise to a claim of constructive dismissal.
Although the EAT decided to uphold the appeal, it did so regretfully as the original tribunal had found as a fact that Ms Fitzmaurice had made the inappropriate comments. She therefore has some very significant hurdles to overcome when her claim returns to the tribunal. When it does, the tribunal could find that her inappropriate comments and the way the disclosures were made constituted separate conduct that led to the disciplinary proceedings. If she wins the remitted claim, the tribunal could decide to make significant deductions to the award for contributory fault.
When looking at cases involving blowing the whistle, there are protections for workers who make disclosures about their reasonable belief in (for example) past, present or future failures to comply with legal obligations and tribunals should consider if a protected disclosure is more than a trivial factor in the detrimental treatment or dismissal. If there are other serious allegations made against the worker, then this could have a significant impact on their chances of winning a claim and/or the remedy they could achieve if successful.