A Whistle-blower's Charter?

Successful whistle-blowing claims have been relatively few and far between to date, but a recent EAT decision looks set to make life easier for potential whistle-blowers.

There are a number of aspects to a whistle-blowing claim which claimants must demonstrate. These include the fact that they have made disclosure of a particular type ("qualifying disclosure"), for example, about a criminal offence or a failure to comply with a legal obligation, to a suitably responsible person within the organisation, in good faith, that they have suffered a detriment, and that there was a causal link between the detriment and the protected disclosure.

It has been quite easy for employers to convince a Tribunal that even where employees or workers have been subjected to a detriment, it was not because they made the disclosure, but because of some quite unrelated reason.

In a case reported earlier this year, the claimant, an independent contractor working for the Foreign and Commonwealth Office as an Overseas Security Manager in Afghanistan, ran into just such a difficulty, having proved all the elements of his claim except for the causal link between the detriment he had suffered, and the disclosures he made.

The Employment Tribunal was satisfied that he had made nine protected disclosures, but despite his colleagues "digging for dirt" and the Tribunal recognising that the claimant been "treated exceptionally badly", he lost his case because the Tribunal decided that he had failed to prove that his superior and colleagues had acted as they did because of the disclosures.

One of the comments in the Employment Tribunal's judgment was "there was a breakdown in the relationship and therefore that does amount to a detriment that the reason for the breakdown of trust arises from the disciplinary meeting and the warning and not from the making of the disclosures". The claimant's case was that the disciplinary meeting and warnings had been trumped up in response to his disclosures. Unfortunately, he was not in a position to appeal the Tribunal's decision.

As this case has been reported in the press we can confirm that were involved in this matter, acting for the claimant.

In the recent case of Fecitt and Others v NHS Manchester, the EAT has allowed an appeal by an employee who seems to have met with a similar response in the Employment Tribunal.

In this case, the Employment Tribunal found that the detriment to which the claimants were subjected was as a result of the dysfunctional situation, rather than "on the ground that" they had made protected disclosures, as the wording of the statute requires.

However, the EAT allowed the claimants' appeal, holding that once the claimants had shown they had suffered a detriment following a protected disclosure, it was for the employer to prove that the treatment was "in no sense whatsoever on the ground of the protected disclosure".

This looks set to make life considerably easier for would-be whistle-blowing claimants.

This article was written by the employment team at Winckworth Sherwood. For more information, contact David von Hagen on 020 7593 5018 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..