An employee was dismissed for carrying out electrical work in breach of health and safety rules. He failed at the first hurdle in his unfair dismissal claim because he did not have the (then) required one year's service. His whistleblowing claim that his dismissal was because he had queried whether the work should be undertaken without further precautions - concerns that he said were overruled by a manager - was also struck out. The Tribunal had thought it highly unlikely that he would succeed in establishing the necessary causal link between the disclosure and the disciplinary action because three others who had allegedly been involved in the ill-fated electrical work were also disciplined.
The claimant's appeal against the striking out of the whistleblowing claim was allowed by the EAT. Although the claimant was one of four men disciplined for the safety breach (two were dismissed and two disciplined), he was the only one who had flagged up health and safety issues, so he had to be allowed the opportunity to show that the reason for his dismissal/detriment was different to the others.
The EAT also took the opportunity to confirm that the causation test for a whistleblowing claim is more onerous for someone like the claimant who has been dismissed (where the disclosure must be the reason or principal reason for the dismissal) than for the victim of alleged detrimental treatment short of dismissal (such as, in this case, the way the disciplinary investigation was carried out), where the claimant only has to prove that the disclosure was a causative factor. This is one of the aspects of the current whistleblowing legislation that has been criticised and may be revisited when the Government carries out its promised review of the legislation later this year.