Although designed to protect employees the concept of whistleblowing raises a number of conundrums. This week we consider two issues:
- Can an agency worker bring a whistleblowing claim against an end user?
- Is it necessary for the person doing the dismissing to be aware of the whistleblowing disclosure?
Agency workers: whistleblowing against the end user
Ms McTigue was an agency nurse assigned to University Hospital Bristol NHS Foundation Trust (“the Trust”). She was employed by and had a written employment contract with an agency. In addition she was also subject the Trust’s standard form contract. Ms McTigue was removed from this engagement. Alleging that the termination arose because she had made protected disclosures, Ms McTigue brought a whistleblowing claim against the Trust.
The Employment Tribunal held that Ms McTigue could not bring such a claim because she was not a “worker” as described by section 43K(1) of ERA 1996 – which allows agency workers to bring claims against an end user who has “substantially determined the terms” of the contract. The Tribunal held that the agency had substantially set the contractual terms and therefore Ms McTigue could not bring a claim against the Trust.
However, Employment Appeal Tribunal found that it was not necessary to decide which party had determined the majority of the terms. Where the Agency and end user had both determined the terms, even if to differing extents, then the definition of “worker” in section 43K(1) ERA 1996 would be fulfilled and the agency worker would be able to bring a claim against both/either party.
Does the dismissing officer need to be aware of the existence of protected disclosures where they have been deliberately misled by management?
Yes, held the Employment Appeal Tribunal in Royal Mail Group Ltd v Ms Jhuti.
Ms Jhuti reported suspected breaches of Royal Mail and Ofcom rules to her manager, Mr Widmer. Rather than supporting her, Mr Widmer tried to get her to retract her concerns. He placed Ms Jhuti on a Performance Improvement Plan, setting her constantly changing and unreasonable targets. Ms Jhuti emailed HR with her concerns over her treatment but HR was unsupportive. Ms Jhuti raised a grievance for bullying and harassment due to her disclosures and went on sick leave. Royal Mail offered Ms Jhuti various termination packages, which she declined.
Royal Mail appointed Ms Vickers to decide what to do with Ms Jhuti. Ms Vickers had no prior knowledge of the case and was not told about the protected disclosures. As Ms Jhuti was still on sick leave, Ms Vickers only spoke with Mr Widmer and did not hear from Ms Jhuti. Mr Widmer withheld relevant emails and lied to Ms Vickers about the protected disclosures. Ms Vickers accepted Mr Widmer’s assertions that Ms Jhuti was a poor performer and terminated her employment. Ms Jhuti appealed but was unsuccessful and brought a claim for automatic unfair dismissal on the basis of whistleblowing.
The Employment Tribunal found that protected disclosures had been made and Ms Jhuti had suffered detriment as a result. However, it found there was no automatic unfair dismissal because Ms Vickers’s decision to dismiss had been made on the basis of her belief that Ms Jhuti was a poor performer. Her decision was unaffected by whistleblowing considerations because she was not aware that protected disclosures had been made.
The Employment Appeal Tribunal took a different view. They found that where a decision maker is kept in the dark about the true facts and manipulated by a manager with responsibility for the employee who is aware of the true situation, then the motivations of that manager must be taken into account in deciding if the dismissal was fair. Taking Mr Widmer’s motivations into account, the EAT found that Ms Jhuti had been automatically unfairly dismissed.
McTigue clarifies which “workers” can bring whistleblowing claims and against whom. Royal Mail makes it clear that deliberate concealment will not protect an employer from a whistleblowing claim. The circumstances of Royal Mail are perhaps unusual but serve as a warning to employers.
Although the EAT in Royal Mail specifically stated that its judgment would apply only to whistleblowing cases, it remains to be seen if the door will be opened to allow the motivations of other managers to be taken into account in discrimination cases too.
- It is possible for a person to be a worker for the purposes of both the agency and also the end user and therefore to be able to bring a whistleblowing claim.
- Where managers have decided to “get rid of” an employee because they have made a disclosure, ignorance of that fact by the dismissing officer will be no defence. It will be important for those tasked with making disciplinary decisions to be astute to manipulation.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.