The claimant in Shinwari v Vue Entertainment Ltd worked as a customer assistant for a cinema chain. The employer had a policy of providing complimentary tickets to staff for films at their cinemas but with a strict prohibition on any resale. In 2012, the claimant witnessed a colleague selling tickets in contravention of that rule and reported it to his manager.
During the subsequent investigatory process, which resulted in the colleague's dismissal, the claimant's witness statement, showing his name, was revealed to the colleague. The claimant later resigned and claimed constructive dismissal, alleging that the information he had given to the employer about his colleague being in breach of his legal obligations was a protected whistleblowing disclosure and that the claimant had suffered detriment as a result, including:
- in revealing his identity as a witness, his employer had failed to treat his identity as a whistleblower with the appropriate level of confidentiality
- the employer had failed in its duty to protect him from being subjected to what he alleged was threatening behaviour by the colleague under suspicion and to bullying and ostracism at the hands of other colleagues|
The Tribunal dismissed his claims. Many of the allegations of detriment were not made out on the facts and, in any event, the employer had acted reasonably throughout and any disadvantage the claimant felt was not in any way related to his protected disclosure. In particular, the evidence showed that no assurance of anonymity was given to the claimant and that he had raised no concerns when interviewed.
The EAT agreed with this analysis. The Tribunal had asked the two essential questions:
- Was the detrimental treatment made out on the facts?
- Was it caused by the whistleblowing?
An employee is protected from detriment on the ground of making a protected disclosure. The Court of Appeal in NHS Manchester v Fecitt established that the question to ask is whether the protected disclosure had a "material influence, being more than a trivial influence" on the treatment given to the claimant. This can sometimes be quite difficult for the employer to rebut but, in this case, the Tribunal had found that the employer had demonstrated that the claimant's protected disclosures played no part in its decisions.
All company employees were under a positive duty to report wrongdoing by their fellow employees or themselves. The reason why the claimant's identity was revealed when his witness statement was given to the colleague was based on the employer's longstanding policy, set out in handbooks and practice, of providing those who are the subject of disciplinary action with the evidence on which reliance was placed. The employer was not aware of anything to indicate that the claimant was concerned about his identity being revealed.
In addition, the employer had behaved reasonably in acting swiftly to protect the claimant in the workplace and by advising him on steps he could take to address any threat outside; in suspending and dismissing the colleague; and in offering to transfer the claimant to a cinema sufficiently far away to separate him from the rumours.
Finally, it is worth mentioning that the events in this case took place before an employer's vicarious liability for the actions of its employees was added to the whistleblower protections in 2013. Employers can now be liable for detriment caused by its employees and workers and this could potentially apply to bullying or harassment by employees as a result of an employee giving evidence against a colleague, although employers do have a defence if they took all reasonable steps to prevent the detrimental treatment.