A recent decision in the Employment Appeal Tribunal (EAT) has confirmed the test that will be applied in claims for automatic unfair dismissal as a result of workers making a ‘protected disclosure’ (ie whistleblowing).
In the case of Secure Care UK Limited v Mr R Mott, Mr Mott worked as a Logistics Manager for Secure Care UK Limited. During the course of his employment, Mr Mott raised a total of nine concerns (alleged protected disclosures) about staff shortages, long working hours and other staffing difficulties which he said endangered health and safety. After the ninth disclosure, Mr Mott was informed he was at risk of redundancy and was dismissed several weeks later.
Mr Mott brought a claim in the Employment Tribunal (ET) for automatic unfair dismissal, arguing that he had been selected for redundancy because he had made protected disclosures.
The ET accepted that three of the disclosures qualified as protected disclosures and that although there was a genuine redundancy situation, the disclosures had had a material impact on Mr Mott’s selection for redundancy. The ET concluded that Mr Mott’s dismissal was therefore automatically unfair.
Secure Care appealed the decision and the EAT disagreed with the ET. It found that the ET had erred on two counts:
- The ET had applied the wrong legal test. It had considered whether the protected disclosures ‘materially influenced’ the employer’s treatment of Mr Mott, a test which applies to whistleblowing detriments rather than dismissal. The ET should have instead applied the test of whether the protected disclosures were the ‘sole or principal reason’ for the dismissal.
- The ET considered the impact of all nine disclosures alleged by Mr Mott when it should have instead confined its consideration to the effect of just the three identified protected disclosures when assessing the reason for dismissal.
This case is a useful reminder that in claims for automatic unfair dismissal, as a result of whistleblowing, the protected disclosure(s) must be the sole or principal reason for the dismissal.
These cases are complicated and employers should seek legal advice when an employee raises concerns or grievances which may amount to protected disclosures.
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