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Ignorance is bliss: decision-maker unaware of protected disclosure defeats automatic unfair dismissal claim

03 November 2017 #Whistleblowers

We reported on the EAT’s decision in Royal Mail v Jhuti back in the summer. Unhappy with the EAT’s decision, Royal Mail appealed to the Court of Appeal. The Court of Appeal restored some sense by confirming that employees cannot claim they have been automatically dismissed for making a disclosure if the decision-maker was unaware of the protected disclosure(s).

A factor which may have influenced the EAT’s decision was the fact that the disciplinary proceedings were instigated by the Claimant’s former line manager who was aware of the Claimant’s protected disclosure and sought to convince the disciplinary officer that the Claimant was a poor performer. The Court of Appeal confirmed that this was not enough, unfair conduct by another employee was immaterial.

Although  this decision provides welcome news for employers, the Court of Appeal confirmed that its findings would not prevent the Claimant from bringing an unlawful detriment claim. This means that Claimants may bring unlawful detriment claims on the grounds of making a protected disclosure as a back-up to an automatic unfair dismissal claim. Now that whistleblowing claims can also be brought against individuals, another option was for the Claimant to add her former line manager as a party to the proceedings.

If you require further information or advice, please contact our Employment Team.

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Kate Walsh

Kate Walsh
Solicitor

E: kwalsh@clarkslegal.com
T: 0118 960 4692
M: 07776 305 578