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A ‘conscious decision’ is needed for there to be a detriment in whistle-blowing cases

Posted on 4th April 2014
Case law

In this case the Employment Appeal Tribunal (‘EAT’) had to decide whether an employee had suffered a detriment and been unfairly dismissed because she was a whistle-blower.

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it must be shown that an employer has made a ‘conscious decision’ to subject an employee to a detriment short of dismissal

Chemistree v Gahir EAT March 2014

The facts and the employment tribunal decision

Ms G was employed by the respondent, Chemistree, as a Responsible Pharmacist for only 18 days before being dismissed on the grounds of ‘mutual unsuitability’. Prior to Ms G’s dismissal she had sent two emails to her employer raising 17 concerns about health and safety and highlighting failures by her employer to comply with a number of statutory and regulatory requirements linked to the storage and dispensing of controlled medicines.

At the employment tribunal Ms G was successful: the tribunal held that the employer resented the fact that Ms G had criticised its practices and procedures and this led to Ms G being automatically unfairly dismissed because the ‘principal’ reason for her dismissal was that she made a protected disclosure (i.e. she was a whistle-blower).

The employment tribunal held that Ms G had also suffered a detriment as a result of making her protected discloses. This was on the basis that the respondent had failed to address her concerns or deal with them adequately. The tribunal was satisfied this caused Ms G to suffer the stress of having to remain at work knowing her employer was acting in breach of a number of significant obligations.

The respondent appealed to the EAT.

The EAT decision

Dismissal was automatically unfair

The EAT concluded that the employment tribunal had wrongly considered the protected disclosures in a ‘rolled up manner’ rather than considering each one separately and in detail. The EAT was quite critical of the tribunal’s reasoning and written judgment. The EAT reluctantly upheld the employment tribunal’s decision that Ms G had been automatically unfairly dismissed. The EAT was happy that the tribunal was justified, based on the evidence, in concluding that the principal reason for the dismissal was the making of protected disclosures. The EAT stressed that the reason for a dismissal is essentially a finding of fact by the tribunal that cannot be reversed unless it is perverse. However, it overturned the decision that Ms G had suffered a detriment as a result of raising her protected disclosures.

No detriment short of dismissal

In relation to the claim of detriment the EAT said that it must be shown that an employer has made a ‘conscious decision’ to treat an employee to his or her detriment for the employee to succeed. This may include a deliberate failure to act. In the absence of actual evidence of a failure to act, the decision will be treated as having been taken when the period expires within which the employer might reasonably have been expected to act.

In this case the EAT said that the tribunal had wrongly concluded Ms G had suffered a detriment given the limited time that passed between the emails being sent and her dismissal. The EAT judged it was difficult to see what detriment Ms G might have suffered during this short period of time.

The EAT criticised the employment tribunal for failing to separately identify each alleged protected disclosure and the statutory or regulatory basis for each alleged failure to comply with a legal obligation or health and safety breach.

In practice

Remember, there is no qualifying period needed to bring a claim of detriment or automatic unfair dismissal for whistle-blowing. If an employee does raise concerns about health and safety or legal obligations the employer should investigate them as soon as possible and report back to the employee. The employer should also try to ensure that the employee is not victimised or treated differently to any other non whistle-blowing employee. That said, if there are grounds to dismiss an employee, unrelated to the protected disclosures, the employer can still dismiss. However, we recommend employers take advice from us before doing so.

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