An employee made a protected disclosure to her line manager. Her line manager, motivated by that protected disclosure, deliberately misled another manager into believing the employee was a poor performer and that manager dismissed the employee for poor performance. The dismissing manager genuinely believed the employee was a poor performer and was not aware of the protected disclosure. The employee brought claims of automatic unfair dismissal and detrimental treatment on grounds of whistleblowing.
The Court of Appeal found that the dismissal was fair. The Court confirmed that in relation to whistleblowing dismissals, only the knowledge and mental processes of the decision maker are relevant in considering whether the dismissal was automatically unfair. The Court also stressed that the right not to be unfairly dismissed (whether for whistleblowing or any other reason) depends on there being unfairness on the part of the employer; unfair or even unlawful conduct on the part of individual managers is immaterial unless it can properly be attributed to the employer.
The Court noted that the employee may be entitled to compensation as her claim of detrimental treatment by her line manager, for which the employer was vicariously liable, was upheld by the employment tribunal and it will be for the court dealing with remedy to decide what compensation she can recover.
|Even though an employer may not be liable for a whistleblowing dismissal where the decision maker had a fair reason to dismiss which was not related to a protected disclosure but had been misled by someone else as to that reason, they may still be found vicariously liable for detrimental treatment of one employee by another because of that disclosure (if the claim included a detriment claim or can be amended to include one). The Court did note in this case that, in some circumstances where the dismissal has been manipulated by someone else, the employer may still be found liable for a whistleblowing unfair dismissal if the person misleading the decision manager is very senior (e.g. the CEO) or has some responsibility for the investigation.|