Hello and welcome to this week’s case of the week, last week we looked at a case involving indirect discrimination. This week’s case looks at whistleblowing and the burden of proof.
Ms. Fairhall was a senior nurse with almost 40 years’ experience in the NHS. In 2015, she became concerned about a number of changes being implemented by management. These changes, she said, were having a detrimental impact on her team’s stress and anxiety levels, in turn impacting on the provision of care.
After the death of one patient, she formally invoked the Trust’s whistleblowing policy. Shortly afterwards, she was suspended and then dismissed, following (in the tribunal’s words) a grossly unfair process. She submitted a claim for unfair dismissal, wrongful dismissal, whistleblowing detriment, and automatic unfair dismissal (alleging dismissal because she blew the whistle).
All of her claims were successful in the employment tribunal. The Trust appealed the finding as to automatic unfair dismissal. This case note concerns that appeal.
The principal ground of appeal was that the tribunal erred in its finding that the dismissal was because of the protected disclosure. The Trust said the tribunal misapplied the burden of proof. They said it concluded that the dismissal could have been because of the protected disclosure; that the dismissal was potentially not because of the reason maintained by the Respondent, and therefore concluded that the dismissal was because of the protected disclosure. This, they said, is the burden of proof in discrimination claims, not for whistleblowing claims.
They are right. In whistleblowing claims, the tribunal needs to be sure that the reason for dismissal (or, if more than one, the principal reason) is that the claimant made a protected disclosure. In discrimination claims, the tribunal only needs to be assured that a) the detriment could have been because of a protected characteristic, and b) no other plausible explanation is offered by the Respondent. In other words, the burden of proof in whistleblowing claims is higher.
However, the EAT warned against overly strenuous arguments based on the burden of proof. It said that the tribunal should rely on its common sense. It was satisfied that the tribunal considered the dismissal to have occurred as a result of the protected disclosure, and this was enough. Employers defending a whistleblowing claim have nothing to worry about so long as any protected disclosure played no part in any decision to subject an employee to a detriment/ dismiss. An employment tribunal is entitled to impute knowledge of a whistleblowing if the organisation know of the whistleblow but the dismissing manager does not know of the whistleblow. This is because some organisations may maniupulate a case for dismissal when a whistle blowing complaint is made and then get a manager who is unaware of the whistleblow to dismiss the employee. Whistleblowing is a complicated area of the law and expert advice should be taken in the event of a whistleblowing claim.