Two recent whistleblowing cases consider what an employer can do where an employee has made a number of whistleblowing complaints in such a way that the employer believes that the employment relationship can no longer continue.
In Bolton School v Evans (2007) the Court of Appeal made clear that a protected disclosure can be separated from the way in which it is made: in that case, an employee was lawfully dismissed for hacking into his employer's computer system to demonstrate the security flaws about which he made a protected disclosure. In both recent cases, Panayiotou v (1) Chief Constable Paul Kernaghan (2) The Police and Crime Commissioner for Hampshire and Blackbay Ventures Ltd t/a Chemistree v Gahir, the employee had made a number of disclosures (to which in each case the employer had initially responded).
In Panayiotou, the Claimant was a police officer of many years' experience who raised his concerns but, when those concerns were not resolved in the way he felt they should be, continued to raise complaints and campaign for what in his opinion would be the correct outcome. After a number of years, he was dismissed using a procedure available to the police when an officer is felt to have business interests which compete with his duties as a police officer. The Tribunal and the EAT agreed that he had been badly treated, but as a police officer he was excluded from the right to claim unfair dismissal.
In the Chemistree case, the Claimant was employed for a total of 18 days. Almost immediately upon her employment she raised concerns, some of which were protected whistleblowing disclosures, and after an increasingly heated exchange of emails, her employer terminated her employment with immediate effect, on the basis of "mutual unsuitability" and the breakdown of mutual trust and confidence.
The EAT held that both claimants had exhausted the patience of their employers, describing them as respectively "unmanageable" and having sent "irrational and extremely aggressive" emails. In Panyiotou, the EAT held that the Claimant was not dismissed for his whistleblowing. However, the EAT has limited powers to overturn the decision of a Tribunal and in Chemistree, the EAT held that the Claimant had not been subjected to a detriment when the employer did not respond to her later complaints; an actionable detriment arising from an omission or failure to do an act can only arise once a deliberate decision is taken not to do that act (in this case, when the employer decided – or should be treated as having decided – not to address points raised in the Claimant's later emails). The EAT commented that not only did the Tribunal not address this point, it was difficult to see what detriment (in this case, stress) the Claimant could suffer in a week, including a bank holiday weekend when her workplace was closed. However, the Tribunal's decision that she had been automatically unfairly dismissed was not perverse and could not be overturned by the EAT since there was evidence to support its findings, although the EAT did disagree with it.
What to take away
The cases act as a reminder of the distinction between the fact of a protected disclosure and the manner in which it is made or the employee's subsequent behaviour. Whilst the employee in Chemistree did succeed in her claim for automatically unfair dismissal, it is clear that the EAT had substantial doubts about that decision but was unable to do anything about it.
The EAT also set out guidance for tribunals to consider when considering claims by employees for victimisation for having made protected disclosures, stressing the importance of identifying each separate disclosure, the legal obligation to which it referred and the date of the disclosure in order to see whether the worker could have suffered a detriment as a consequence of that disclosure.