Where an employee alleges that they were dismissed for ‘whistleblowing’ and the employer cannot show a fair reason for the dismissal, how much does the employee have to prove in order to succeed with their claim?

In Kuzel v Roche Products Ltd, the head of UK regulatory affairs at Roche alleged that she had been summarily dismissed for raising legal issues about the supply of weight-loss drugs. Roche failed to satisfy the tribunal that she had in fact been dismissed for ‘some other substantial reason’ namely a breach of trust and confidence and a breakdown of working relationships with other colleagues. The tribunal considered she had been dismissed because of a catastrophic loss of temper and failure to follow advice of HR director on the part of her superior, and her dismissal was automatically unfair because of the employer’s failure to follow the statutory disciplinary procedure. However it did not think that she had ‘made out her case’ on whistleblowing and so rejected that claim.

On appeal, the employee argued that a whistleblowing claim should be treated like a discrimination claim. Once the employer’s alleged reason for her dismissal had been rejected, the tribunal was bound to conclude that the reason for her dismissal had been whistleblowing – certainly where, as in her case, she was eligible for protection from ‘ordinary’ unfair dismissal having completed more than one year’s service. The EAT disagreed with her argument but remitted that case to the tribunal to reconsider. Having rejected the employer’s arguments, the tribunal should have gone on to consider not whether she could prove her claim but whether her employer could disprove it.

Points to note –

#  If the statutory disciplinary procedures had been followed in Kuzel, the employers would have avoided a finding of automatic unfair dismissal and also stood a better chance of persuading the tribunal of their reason for the dismissal. The statutory procedures apply to all employers. We can advise on their application.

#  Where whistleblowing is the reason or the principal reason for a dismissal, the dismissal will be automatically ‘unfair’ for the purposes of the Employment Rights Act 1996. Whistleblowers do not have to have one year’s service to make an unfair dismissal claim. Also there is no statutory ‘cap’ on the compensatory award. This was why the employee in this case appealed the whistleblowing point. Her annual salary was over £87,000 but the statutory ‘cap’ is currently fixed at £60,600.

#  While the compensatory award for an employee dismissed for whistleblowing is uncapped, it can only cover financial losses. However, where an employee has been subjected to a detriment for whistleblowing, but not dismissed, they may claim compensation for personal injury and injury to feelings. We can advise on the full extent of the statutory protection available to whistleblowers.