Whistleblowing and the importance of good investigations

Angharad Birch considers the case of City of London Corporation v Mr L McDonnell in which the Employment Appeal Tribunal (EAT) considered whether a finding of a claim for whistleblowing was based on the correct interpretation of the evidence.

Suspension and dismissal

The Claimant was suspended for the manner in which he had dealt with his managers and clients, which was found to be unprofessional and obstructive, and for failing to comply with basic professional standards. In retaliation, the Claimant made certain ‘disclosures’, accusing some managers and Councillors of fraud and political interference.

The allegations against one Councillor were upheld but the others were found to be baseless.  During the disciplinary hearing, when asked by the chair about the allegations he had made about management, the Claimant replied ‘What am I supposed to do, I have four disciplinary accusations against me, and of course I will retaliate’ (the ‘retaliation comment’).

The Claimant was dismissed for gross misconduct. The allegations that he had been unprofessional, confrontational and inappropriate were upheld.

The disciplinary panel also held that there had been a complete breakdown in trust and confidence between the Claimant and his employer, as evidenced by the repetition of unsubstantiated allegations against his managers and the retaliation comment.

Employment Tribunal and appeal

The Claimant issued claims in the Employment Tribunal alleging unfair dismissal because of protected disclosures he had made.  The Employment Tribunal upheld the claim for unfair dismissal. The Employment Judge specifically drew a causative link between the retaliation comment and the decision to dismiss him.

The employer appealed to the EAT, which partly upheld the employer’s appeal.

The most important finding for employers was that Tribunal Judge had failed to identify the alleged protected disclosures. The Judge found that the employer had broadly accepted that the comments were qualifying disclosures, and that he could therefore conclude that they were.

However, the EAT stated that it is an Employment Judge’s key role to make findings of primary fact on the basis of the evidence before him/her, and that an employer’s acceptance is not enough to conclude that the disclosures are protected.

What should employers note?

Employers should therefore be aware that even if they accept that disclosures made by employees would amount to protected disclosures for the purposes of whistleblowing, an Employment Judge must still carry out a proper fact-finding exercise before this can be established in the context of a claim. Employers should ensure that they carry out a thorough investigation of concerns raised by employees and take any necessary action.

The EAT also confirmed that, whilst an employer would not be permitted to rely on a protected disclosure as a reason for dismissal, it would not necessarily be unlawful to dismiss an employee because of the manner in which earlier disclosures were pursued or repeated.

In making disciplinary conclusions, employers should be careful not to draw a causative link between allegations raised by an employee which could amount to whistleblowing allegations and any grounds for dismissal. However, if an employee repeatedly makes groundless accusations which appear to be made for no other reason than in retaliation to disciplinary proceedings, it may be possible to dismiss them fairly.

The case is being remitted back to a fresh Employment Tribunal to decide whether the employee was unfairly dismissed.

If you have any questions, please contact Angharad Birch.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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