The Employment Appeal Tribunal Find That An Employee Was Not Automatically Unfairly Dismissed After Making Protected Disclosures

Secure Care UK Ltd V Mr Mott

Case background

Mr Mott was employed by Secure Care UK Ltd from 6 July 2018 to 13 November 2018 as a Logistics Manager. Secure Care provided transport services to NHS Trusts for people with mental health problems.

Mr Mott claimed he had ‘blown the whistle’ on nine occasions. Shortly after beginning his employment, Mr Mott said he had raised concerns over staff shortages and the long hours’ staff were working. In another instance, Mr Mott asserted that the shift arrangements were not possible as staff would not have adequate rest breaks. He raised similar concerns relating to staff shortages on other occasions.

Mr Mott raised a final concern on 26 September 2018, when he was instructed to inform a client that they had available cover for an assignment when they in fact did not. Mr Mott expressed that he was unhappy about this and stated that Secure Care was in breach of the Care Quality Commission Regulations, health, and safety law, and the Working Time Regulations.

The following day, Mr Mott and two other employees were called into a meeting and advised that they were at risk of redundancy. They were asked to leave the premises immediately and not to speak to other staff members.

Following a consultation process, Mr Mott was informed he was dismissed on the grounds of redundancy. Mr Mott claimed that his dismissal was automatically unfair for making protected disclosures.

Employment Tribunal (ET) decision

The ET held that three of Mr Mott’s nine communications were qualifying disclosures for the purposes of the legislation. It found that although there was a genuine redundancy situation, Mr Mott’s disclosures had a material impact on his selection for redundancy and therefore that he was unfairly dismissed.

Employment Appeal Tribunal (EAT) decision

Secure Care UK Limited appealed against the decision.

That appeal was successful as the EAT held that the ET had applied the wrong legal test. The ET had used the test applicable to a claim for subjecting a worker to a detriment on the ground that the worker had made a protected disclosure (i.e. they considered whether the disclosures had ‘materially influenced’ the dismissal). The EAT stated that the correct test applicable to an unfair dismissal claim was whether the protected disclosure was the sole or principal reason for the dismissal (and, therefore, a higher threshold).

The EAT also found that the ET failed to focus on the effect of the three qualifying disclosures alone rather than all the communications made by Mr Mott.

The case was therefore referred back to the ET to consider further.

Comment

There are two types of protection for a workplace whistleblower with different tests applied in each.

The first (for employees only) is the protection from being dismissed where the sole or principal reason for dismissal is that they have blown the whistle. The second (for all workers) is protection from detriments where the detrimental treatment is materially influenced by whistleblowing.

In order to benefit from the protection, whistleblowers need to show that their alleged disclosures meet a range of criteria.

Employers who are faced with an employee claiming that they are blowing the whistle or that they are entitled to protection as a whistleblower need to consider all communications from the employee to decide whether to proceed with treating them as a whistleblower and consider whether any whistleblowing policies apply. Early legal advice can be really helpful to identify what is and isn’t whistleblowing and to ensure that disclosures and those making them are treated fairly and the employer is not exposed to significant legal liability.