In this case the EAT decided that in order for a whistleblowing claim to succeed the decision-maker at the employer needs to have some knowledge of what the employee is complaining or expressing concerns about. It is not enough that the decision-maker knows that the employee has made a disclosure to another person.

Facts and background:

Under whistleblowing law, the dismissal of an employee will be automatically unfair if the reason, or principal reason, for their dismissal is that they have made a "protected disclosure". Workers are also protected from being subjected to any detriment on the ground that they have made a protected disclosure.

The claimant, Mr Nicol, had worked as a consultant for the World Travel and Tourism Council (WTTC) since 2011. On 1 May 2019, he commenced employment as Vice-President of Communications and PR. He raised concerns about Ms Guevara, the President and CEO of WTTC, in an email sent on 27 August 2019 to two HR consultants engaged by WTTC. The email might have been forwarded to Ms Guevara but, even if it was, it was not read by her. On 29 August 2019, the two HR consultants conducted workshops with junior staff at which concerns about Ms Guevara were also raised. On 3 September 2019, one of the HR consultants told Ms Guevara that complaints had been made about her management style. In that conversation, the HR consultant told Ms Guevara to be careful and to take legal advice as lots of complaints about her management style had come out of the workshop with junior staff, however, she did not make “direct reference” to the claimant’s email of 27 August 2019.

Mr Nicol's employment was subsequently terminated on 14 October 2019, purportedly for redundancy. Mr Nicol brought claims for automatic unfair dismissal and detriment as a result of making protected disclosures. His claims were dismissed by an employment tribunal and, in the main, by the EAT.

The tribunal decided that redundancy was not the real reason for the claimant's dismissal, however, it also decided that the claimant was not dismissed or subjected to detriment for making protected disclosures. Instead they found that the reason for the claimant's dismissal was the breakdown in the relationship between Ms Guevara and the claimant. The email of 27 August 2019, was classed as a protected disclosure but the tribunal found that it was not communicated to Ms Guevara in sufficient detail so that she was aware of a protected disclosure having been made to the two HR consultants on that occasion. The tribunal found that the email did not come to her attention until the legal proceedings, even if it had been forwarded to her at the time.

Dismissing the claimant's appeal, the EAT agreed with the tribunal's stance that mere awareness that someone had made a protected disclosure was insufficient to establish liability on the part of the employer. Rather, the decision-maker must have some knowledge of what the employee is expressing concerns about to be held accountable for any resulting detriment or unfair dismissal.

What this means for employers

While this is a positive case for employers, it is quite unusual on the facts. In addition, the case doesn't set out how much detail the decision maker must know about the protected disclosure for it to potentially act as a reason for the dismissal and detriment.  Employers should therefore proceed cautiously when someone has made a protected disclosure both in terms of following their whistleblowing policies and upholding their legal obligations to protect whistleblowers from any form of detriment or unfair treatment.

Case: Toby Nicol v World Travel and Tourism Council, Gloria Guevara, Emilio Gracia