Anna Greenley appears in important EAT Whistleblowing Appeal

In Mr T Nicol v World Travel and Tourism Council and Others [2024] EAT 42, Mr Justice Sheldon gave guidance on the extent of knowledge a decision maker must have of a whistleblower’s protected disclosure in order to come within s.103A Employment Rights Act 1996 (“ERA 1996”) (whistleblowing dismissal) and/or s. 47B(1) ERA 1996 (whistleblowing detriment). The degree of knowledge that a decision maker must have of a protected disclosure has not previously been the subject of appellate authority.

The Employment Tribunal had found that Mr Nicol had made a protected disclosure to a Ms Roberts who then told the Second Respondent, the decision maker, about the disclosure. However, the tribunal found that, “it is not sufficient that, as we have found, Ms Roberts told the second respondent of the claimant’s concerns over the terms of Ms Wynne’s departure and her use of the messaging platform WhatsApp. There is no evidence from which we could find that sufficient factual allegations (as opposed to opinion) were communicated by Ms Roberts to the second respondent in their conversation on 3 September or in the period from 27 August to 3 September for the second respondent to have been aware of a protected disclosure having been made on 27 August.”

The EAT held that “the ET did not err in deciding that person B needed to be aware of some of the detail of what the claimant had disclosed to person A. According to the structure of the whistleblowing legislation, for employers to be fixed with liability, they ought to have some knowledge of what the worker is complaining or expressing concerns about. It is not enough that person B knows that the claimant has made a disclosure to person A”. However, the EAT did not specify the degree of detail that the decision maker must have under the statutory framework.

 Anna Greenley acted for the Appellant (instructed by Prettys Solicitors). The judgment can be accessed here.

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