Suffering A Detriment After Making A Protected Disclosure

Suffering A Detriment After Making A Protected Disclosure

In the recent case of Anastasiou v Western Union payment Services the Employment Appeals Tribunal (EAT) considered whether in a whistleblowing claim the person who subjected the Claimant to a detriment had to have knowledge of the Claimant’s protected act.

In 2010 one of the Respondent’s employees made a complaint that he had been marginalised after he had raised concerns about the accuracy of information being disclosed to investors and potential investors regarding the Respondent’s performance and prospects. The Respondent conducted an investigation into this complaint and in July 2010 the Claimant was interviewed as part of this investigation.

During his interview the Claimant expressed his own concerns about the prospect of the Respondent meeting its performance targets and in particular the goal of achieving 10000 new retail locations.

Shortly after this the Claimant was dismissed for having made fraudulent expenses claims.

The Employment Tribunal dismissed the Claimant’s complaints of both automatic unfair dismissal and ordinary unfair dismissal but found that the Claimant had been subjected to certain detriments as a result of him making a protected disclosure. The Claimant complained of detriments including being side-lined at work making enquiries into his expenses claims and referring to the results of those enquiries to a disciplinary hearing.

The EAT followed an earlier case of Cavendish Munro v Geduld and upheld the finding that the Claimant had disclosed ‘information’ during the investigation rather than simply express a personal opinion on a business strategy and that the information disclosed was sufficient to constitute a potential breach of the Respondent’s legal obligations (in this case whether misleading information had been provided to investors and potential investors.

In the view of the EAT the legal obligation in issue was apparent to all involved as a matter of common sense. Therefore the Employment Tribunal was entitled to find that there had been a qualifying disclosure for the purpose of the whistleblowing claim.

However the EAT held that the Tribunal had failed to demonstrate how it concluded that the protected disclosure materially influenced the Respondent’s treatment of the Claimant. This is because there was no finding of fact in respect of any of the detriments that the individuals involved had any knowledge that the Claimant had made a protected act.

The final issue to be considered by the EAT was whether the Employment Tribunal’s departure from the agreed list of issues constituted a breach of the rules of natural justice. The EAT found that"re-casting" of the claim had taken place and that the decision to add a further detriment to the list of agreed issues obliged the ET to permit the parties to make further representations.

The Claimant’s claim was unsuccessful because of the lack of knowledge of the individuals involved that the Claimant had made a protected disclosure. The EAT confirmed that this was necessary in relation to detriment suffered following a protected disclosure being made.

If you have been unfairly dismissed or you have made a protected disclosure to your employer (whistleblowing) and have been treated unfairly as a result of you raising those concerns or for any other reason including discrimination on the grounds of for example your race sex or disability please contact the specialist employment team at Michael Lewin Solicitors and we will be happy to discuss your situation with you.

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