Whistleblowing in the workplace & redundancy

December 15th, 2021

Generally, an individual must have two years’ continuous service to bring a claim for unfair dismissal. But there are certain situations where two years’ continuous service is not required and one such situation is if the employee can show that they were dismissed because they made a protected disclosure (more commonly known as ‘blowing the whistle’) entitling them to bring a claim for automatic unfair dismissal under whistleblower protection.

The Employment Appeal Tribunal (“EAT”) recently considered the correct legal test to be applied in Secure Care UK Limited v Mott in such cases.

Mr Mott was employed by Secure Care as a Logistic Manager from 6 July 2018 to 13 November 2018. During his employment Mr Mott raised nine disclosures including concerns regarding staff shortages, long working hours, and rest breaks, which he said endangered health and safety.

The day after the ninth disclosure Mr Mott was told his role was at risk of redundancy and he was dismissed shortly after. Secure Care was facing financial difficulties at the time and two other members of staff were also made redundant. Mr Mott brought a claim of automatic unfair dismissal in the Employment Tribunal (“ET”) under section 103A of the Employment Rights Act 1996 (ERA) arguing that he had been selected for redundancy as a result of him whistleblowing in the workplace.

The ET determined that there was a genuine redundancy situation. The ET also held that three of the nine disclosures relied upon by Mr Mott were protected disclosures. The test the ET applied when considering whether the dismissal was unfair was whether the protected disclosures ‘materially influenced’ the reason to dismiss (as set out in the case of Fecitt). ET considered that they did and upheld Mr Mott’s claim for unfair dismissal.

Secure Care appealed this decision on the grounds that the ET applied the wrong legal test and it failed to distinguish between the disclosures. The EAT agreed.  The EAT held that ET had erred in two respects. Firstly, it should have considered what was the ‘sole or principal reason’ for the dismissal as per section 103A ERA, rather than whether the whistleblowing in the workplace ‘materially influenced’ the dismissal. The latter only being applicable for claims for whistleblowing detriment under section 47B ERA, i.e. where an employee is subjected to a detriment, or disadvantage, short of dismissal, because they made protected disclosures. Secondly, the EAT also held that the ET erred by failing to distinguish the impact of the three disclosures which it determined were ‘protected disclosures’, from the remaining disclosures.  Instead, the ET combined and considered the impact of all nine together. The matter was remitted to the ET to consider whether the three protected disclosures where the ‘sole or principal’ reason for dismissal.   

You can read the full judgment here.

This case update was written by Jo Sinclair, Solicitor at didlaw.

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