One of the age-old problems faced by whistleblowers lies in proving that the reason for a particular workplace detriment is related to a whistleblowing disclosure. As in discrimination cases, employers do not generally advertise the fact that they are punishing an employee for an unlawful reason. The ‘smoking gun’ e-mail or text message in which a manager spills the beans in writing is sadly very rare. Most whistleblowing claims are constructed through circumstantial evidence, a shaky edifice which all too often collapses under the harsh glare of tribunal scrutiny. The majority of claims fail for this reason.
This difficult task may have got slightly easier following the Employment Appeal Tribunal decision in the case of University Hospital North Tees v Fairfield. The case concerned a 38-year-old clinical care coordinator who had made a number of whistleblowing disclosures relating to the poor standard of care within the hospital. She was then suspended and dismissed due to apparently unrelated bullying and harassment allegations.
The employment tribunal found that her dismissal was automatically unfair due to whistleblowing. The basis of its decision was that the purported reason for dismissal was so weak as not to be credible. The tribunal was particularly critical of the fact that the dismissing officer attempted to introduce an additional dishonesty allegation at the hearing relating to the mishandling of charity money. This allegation was not mentioned in the dismissal letter and the tribunal found that this was an attempt to ‘beef up’ an otherwise weak case.
The employer appealed arguing that whilst the dismissal may have been unfair there was no evidence that it was influenced by whistleblowing. In doing so it followed the case of Jhuti which found that there must be evidence that a dismissing officer is aware of a whistleblowing disclosure before a tribunal can make an automatic unfair dismissal finding.
The EAT rejected the appeal. Whilst there was no direct evidence that the dismissing officer was aware of the claimant’s whistleblowing disclosures, it was clear that her disclosures were common knowledge amongst management and awareness could therefore be inferred.
The EAT also made a number of common-sense observations which will be highly useful to whistleblowers. It recognised that whistleblowing detriments usually arise in the context of organisational cover-ups. The perpetrators of conspiracies do not usually advertise their presence with explicit e-mails or meeting notes but instead ‘lurk in the shadows’ and will influence decision makers through less formal communications. It is perfectly right and proper in these circumstances for tribunals to make inferences and the Jhuti situation of a lone decision maker uninfluenced by wider organisational considerations will be a rare occurrence.
The case is useful in rebalancing whistleblowing law and removes from whistleblowers the near impossible burden of having to prove what is in a decision maker’s mind.
This blog was prepared by Mark Alaszewski, solicitor at didlaw
