Whistleblower Protection Following Nicol V World Travel And Tourism Council
Author: Sam Evans
Key Contact: Claire Knowles
In Nicol v World Travel and Tourism Council, (“Nicol”) the Employment Appeal Tribunal held that the decision maker in a whistleblowing claim must possess some understanding of the substance of a disclosure in order to be held liable under the Employment Rights Act 1996 (“the ERA”). Details of the full judgment can be found here.
Background
Mr Nicol was employed as Vice President of Communications and PR by the World Travel and Tourism Council (“WTTC”). He raised concerns about the management style of Gloria Guevara, the President and CEO of WTTC, to two HR consultants retained by WTTC via email. The consultants then informed Ms Guevara that there had been complaints about her management style and treatment of junior staff. At no time did they particularise the claimant’s allegations relating to Ms Guevara.
He was subsequently dismissed by Ms Guevara by reason of redundancy.
Mr Nicol sought to argue that his dismissal was automatically unfair pursuant to section 103A of the ERA. This provision means that the dismissal of an employee will be automatically unfair if the reason, or principal reason, for the dismissal is that they made a “protected disclosure”. In the alternative, he also argued that he suffered detriment due to whistleblowing under section 47B(1) of the ERA.
At first instance, the Employment Tribunal dismissed Mr Nicol’s arguments. In paragraph 112, the Tribunal explicitly states that “the respondents never considered that the claimant was actually a whistleblower and that this played no part in their decision to dismiss him”. Therefore, whilst Mr Nicol had made disclosures to the HR consultants, Ms Guevara was not sufficiently aware of the detail of the complaints for the decision to be motivated by the disclosures.
Appeal
Mr Nicol appealed to the Employment Appeal Tribunal on various grounds including that the Employment Tribunal had misapplied the law when considering whether WTTC believed him to actually be a whistleblower when deciding to dismiss him.
However, Sheldon J dismissed the appeal. He held that the Employment Tribunal had not misapplied the law and that paragraph 112 of the tribunal’s judgment had to be read in context. Firstly, the reasons given by Ms Guevara in a letter to the board of WTTC did not mention the whistleblowing allegations whatsoever and none of the contemporaneous WhatsApp allegations mentioned them. Further, WTTC ultimately regarded the disclosures as being part of his negotiating strategy and that, therefore, Mr Nicol was not dismissed for making disclosures, regardless of whether they were considered as “protected disclosures” or not.
Comment
This judgment emphasises the benefit of approaching redundancy situations using a clear, considered, and well-documented business perspective. Where the rationale for decision-making is unclear, uncertainty may allow for adverse inferences to be drawn regarding the relevance and weighting of motivating factors.
Organisations should also regularly review their whistleblowing policies and procedures and communicate clearly any changes to their staff.
This case can be usefully contrasted with the earlier case of Royal Mail Group v Jhuti where a decision maker was held liable under Section 103A of the ERA even where they had no knowledge that a protected disclosure had been made. However, the difference in that case was that the decision maker had been unknowingly deceived into dismissing Ms Jhuti by a bad faith actor who knew full well about the content of the protected disclosure and fabricated a reason to dismiss because of the disclosure.
If you need further guidance about best practices for your business to avoid whistleblower claims, then please get in touch with the employment team at Acuity Law.
