Employment Update: Whistleblowers

13 May 2008

‘Whistleblower’ claims are not to be treated in the same way as discrimination claims. If the tribunal rejects the reason put forward by the employer for the employee’s dismissal, it does not then have to accept the employee’s claim that ‘whistleblowing’ was the reason but may decide that a further reason, not suggested by either party, was the actual reason for the dismissal.

Kuzel v Roche Products Ltd was a 'whistleblower' case.

In this case, the employee alleged that she had been dismissed for whistleblowing. The employer (who has the burden in unfair dismissal cases of proving that there was a fair reason for the dismissal) said that she had in fact been dismissed for misconduct and/or 'some other reason justifying dismissal' because there had been a breakdown in trust and confidence between her and her immediate managers.

The employment tribunal rejected the employer's arguments but did not believe that the employee had 'made out' her whistleblowing claim. On the facts, the tribunal considered that she had simply been unfairly dismissed by her boss in a fit of temper.

Unlike discrimination claims, there is nothing said in statute about where the burden of proof lies in whistleblower cases.

The employee appealed to the EAT which said that the case should be remitted to consider the whistleblowing issue more fully. The EAT suggested that the burden was not on her to 'make it out' or prove it.

She appealed further to the Court of Appeal, saying that the EAT should have gone further and made a positive finding that, as the employer had failed to establish its potentially fair reasons for dismissal, her reason (whistleblowing) should be accepted without her having to prove it (as would be the case in an unlawful discrimination claim).

The Court of Appeal disagreed with her, and the EAT, and gave useful guidance about how whistleblowing cases are to be treated. They should be treated like unfair dismissal claims not discrimination claims. The reason for any dismissal is a question of fact for the tribunal to decide. The tribunal must identify the reason or principal reason for the dismissal. There was no legal obligation on it to make a positive finding of a whistleblowing dismissal in this case just because the employer had failed to establish a potentially fair reason for the dismissal. It was entitled to do what it had done.

Point to note:

· There is one significant difference between ‘ordinary’ unfair dismissal and a whistleblower case. There is no statutory ‘cap’ to compensation where an employee is unfairly dismissed for being a whistleblower.

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