UK: Employers could face whistleblowing liability despite decision-maker's ignorance of protected disclosure, and for claims from agency workers

The EAT has confirmed that the reason for a dismissal can be the employee's whistleblowing, even where the decision-maker is unaware of this, if their decision has been manipulated by a manager aware of the protected disclosure and motivated by a desire for retribution.

In Royal Mail Group v Jhuti, the employee's line manager fabricated evidence of poor performance, setting unattainable targets to punish her for whistleblowing. The decision-maker relied on this evidence to justify dismissal; she was aware that the employee had queried another employee's conduct but understood that the employee had retracted the allegations on the basis that it was a misunderstanding. The decision-maker accepted this without interviewing the employee, who was unwell. Although the decision-maker was not aware that there had been a protected disclosure and genuinely considered there to be poor performance, the line manager's motivation in bringing this about had to be taken into account. The dismissal was therefore automatically unfair.

The case highlights the need for HR to keep track of protected disclosures by an employee. Where the employee is at risk of disciplinary or performance sanctions based on evidence supplied by a manager aware of the disclosures, HR should consider whether this should be brought to the attention of the decision-maker. This case might also have been avoided had the decision-maker carried out a fuller investigation, including getting the employee's version of events, whether in person or in writing if unwell.

The ruling diverges from the position in direct discrimination claims, where it is the motive of the decision-maker that counts. It is also unclear whether the ruling is limited to situations where the manipulation is carried out by someone in a managerial position with responsibility for the employee. The decision is being appealed.

The EAT has also  confirmed that employers can face whistleblowing claims from agency workers supplied to work in their business. An individual may be protected against retaliation from both agency and end-user. The extended definition of worker for whistleblowing purposes applies where the terms on which the agency worker is engaged are in practice substantially determined not by the worker but by the agency, end-user, or both. The EAT ruled that there is no need to show that the end-user (as opposed to the agency) determined the majority or most important terms; it is enough that the worker does not determine the terms, and the agency and end-user do so between them. 

Employers may wish to review their whistleblowing policies to cover agency workers, possibly to allow them to use internal channels but also to ensure employees know not to retaliate against agency worker whistleblowers. End-users who decide no longer to use an agency worker who has blown the whistle should ensure they have documentary proof of genuine reasons unconnected with the whistleblowing. (McTigue v University Hospital Bristol NHS Foundation Trust).