In Nicol v. World Travel and Tourism Council, the Employment Appeal Tribunal (EAT) has held that for employers to be liable for automatically unfair dismissal under the whistleblowing provisions of the Employment Rights Act 1996, the decision-maker should have a degree of knowledge about the substance of the employee’s disclosures.
Facts
Mr Nicol was employed as Vice President of Communications and PR by the World Travel and Tourism Council (WTTC). In an email sent on 27 August 2019, he flagged concerns to two HR consultants engaged by WTTC about Ms Guevara, the President and CEO of WTTC. In the following days, several other junior staff raised concerns about her. On 3 September 2019, Ms Guevara was informed about the complaints that had been made about her management style.
On 14 October 2019, Mr Nicol’s employment was terminated by reason of redundancy. Mr Nicol brought claims for automatic unfair dismissal and detriment related to his having made protected disclosures, also known as whistleblowing. Mr Nicol claimed the true reason for his dismissal was that he had made protected disclosures to WTTC.
Decision
His claims were dismissed by an employment tribunal (ET). The ET found that:
- Ms Guevara, who made the decision to dismiss Mr Nicol, did not know the specifics of the disclosures that were shared with the two HR consultants;
- the email sent on 27 August 2019 had not come to her attention until the legal proceedings, even if it had been forwarded to her at the time; and
- Mr Nicol was not dismissed or subjected to detriment for making the protected disclosure in that email.
Further, whilst the ET found the 27 August email to be a protected disclosure, it found that its contents were not communicated to Ms Guevara in sufficient detail to make her aware that a protected disclosure had been made to the two HR consultants.
On appeal, Mr Nicol took issue with the ET’s “inappropriate” approach to identifying the level of knowledge the decision-maker had (in this case, Ms Guevara). Mr Nicol contended that Ms Guevara did not need to have or understand the detail of what had been disclosed to the HR consultants as long as she was aware he had made a disclosure.
The EAT dismissed this ground of appeal. It held that the ET had not erred in law by deciding that Mr Nicol’s concerns were not communicated in sufficient detail to Ms Guevara so that she was aware that a protected disclosure had been made. A dismissing manager needed to have at least some information about the nature and content of the disclosure for a dismissal to be automatically unfair on that basis. In this case, Ms Guevara’s knowledge of Mr Nicol’s disclosure was insufficient for the employer to be liable for automatically unfair dismissal.
Interestingly, this point has not been considered previously, so this decision provides authority that in a whistleblowing case the decision-maker must have some knowledge of the content of the disclosure in order for the employer to be liable for detriment or automatically unfair dismissal.
