Good afternoon, we hope today’s case will pass the time on a sunny Friday afternoon.
This weeks’ case is rather juicy and concerns protected disclosures, office romances gone sour, driving planes whilst drunk and just in case that isn’t enough drama there is also a bit of embezzlement involved (cue dramatic music).
The question this week is:
Can an employee be dismissed for making protected disclosures if they haven’t told the employer they have made them?
Ms Schaathun the Claimant, was a 10% shareholder and company secretary for Executive & Business Aviation Support Ltd, the Respondent, who manage the maintenance of private and corporate jet aircraft. The Claimant was also in a relationship with the company’s Managing Director.
The MD then tried to end his relationship with the Claimant, the Claimant was then seen at the Respondent’s office copying and taking bank statements and other documents. She was concerned that the MD had been putting personal expenditure through the company.
She also became aware of other issues and made protected disclosures to numerous bodies including; the Environment Agency about the Respondent storing hazardous chemicals at its premises,
HMRC in relation to the Respondent’s abuse of its tax allowance,
Solicitors and an aviation regulator regarding the MD operating aircraft under the influence of alcohol.
In the meantime the Claimant was removed as company secretary. The Respondent argued that this was because there was no longer a requirement for one. The Claimant was still employed by the Respondent in a different role.
The Claimant was then invited to a redundancy consultation, the Claimant requested the MD did not attend and the meeting was conducted by an external HR consultant. Following the meeting the Claimant was dismissed by reason of redundancy.
She brought unfair dismissal and automatic unfair dismissal claims to Tribunal citing the protected disclosures she made and the previous relationship with the MD as the reason for dismissal as there was no redundancy situation.
The ET accepted the unfair dismissal claim but held that as the Claimant had not informed the Respondent of her disclosures they did not qualify as protected disclosures.
The Claimant appealed and the EAT held that despite the Claimant not informing the Respondent about her disclosures they could still have found out about them by other means.
To answer this week’s question, yes, in theory an employer could find out about a protected disclosure without the employee telling them. In this scenario if the prescribed person informs the employer and the employer only has a small number of staff privy to that information it makes it fairly obvious who the whistleblower was.