Whistleblowing & The Impact Of Being “Materially Influenced”

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Key Contact: Claire Knowles

In the case of Secure Care UK Limited -v- Mr R Mott (2021), the Employment Appeal Tribunal (‘the EAT’) have held that the fact the decision maker was materially influenced by an employee making protected disclosures (‘whistleblowing’) was not the correct test to establish whether the employee was automatically unfairly dismissed.

Background

Mr Mott was employed by Secure Care UK Limited for 4 months, 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, including people who were detained under the Mental Health Act.

It was common knowledge that Secure Care were facing significant recruitment and retention problems.

Mr Mott was responsible for deploying staff for transport assignments. In this role, Mr Mott became concerned that Secure Limited was significantly short staffed. As a result, he made a series of communications to management that he believed Secure Care were in breach of its legal and regulatory requirements, and endangering individuals’ health and safety.

Shortly after these communications, Mr Mott was made redundant. Secure Limited was under significant financial distress and needed to partake in an essential cost saving exercise. As part of this restructure, it was decided that Mr Mott’s roles and responsibilities could be absorbed by the Chief Executive Officer and one other person. 

The Law

Section 103A of the Employment Rights Act 1996 provides that an employee who is dismissed shall be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal was whistleblowing.

If an employee establishes that whistleblowing is the sole or principal reason for the dismissal, he or she will be held to be automatically unfairly dismissed. An employee can be automatically unfairly dismissed at any stage and does not need to have two years’ qualifying service to bring the claim to an Employment Tribunal. 

The Employment Tribunal’s decision

In the first instance, the Employment Tribunal (‘the ET’) established that three of the nine communications Mr Mott relied on were whistleblowing communications.

The ET determined that there was a genuine redundancy situation in Secure Care but raised concerns on the fairness of the selection process followed. The ET found that Mr Mott ‘pointing out problems’ in a number of communications (some of which amounted to whistleblowing) had clearly had a material effect on his selection for redundancy.

The ET concluded that his redundancy selection, and subsequent dismissal, was materially influenced by him whistleblowing and decided he had been automatically unfairly dismissed.

The EAT’s decision

The EAT held that the ET had applied the wrong causation test. The EAT clarified that the ‘material influence’ test is only applicable to determining whether a worker has been subjected to a detriment as a result of whistleblowing. The correct test for automatic unfair dismissal is whether the whistleblowing was the sole or principal reason for the dismissal.

The ET had also incorrectly considered the overall impact that the nine communications on staffing levels had had on his redundancy situation. It had failed to adequately distinguish the impact of the three whistleblowing communications. The EAT held that it was necessary to consider each of the three whistleblowing communications separately, to determine which (if any) of these communications were the sole or principal reason for his dismissal.

What’s next?

The case will now be remitted back to the ET to consider whether any of the three whistleblowing communications identified by the ET were the sole or principal reason for Mr Mott’s dismissal.

This decision provides clarification that the burden is on the employee to demonstrate that the whistleblowing communication was the sole or principal reason for the dismissal, when bringing a claim of automatic unfair dismissal. The motivation of the decision maker will be crucial in determining if the employee has been automatically unfairly dismissed, but it is not enough for the employee to only show that the decision maker was materially influenced by the whistleblowing communication.

We always recommend that management teams are trained to recognise whistleblowing communications, and that you implement appropriate policies and systems of work to properly record and investigate whistleblowing in your business.

If you require any support on a redundancy process, a whistleblowing investigation or if you want to implement whistleblowing policies or training to protect your business, talk to a member of our Employment Team today.

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