An Employment Tribunal in reaching its conclusions in whistleblowing cases is likely to follow two judgements. The first being in the Judgment of Mr Recorder Underhill in London Borough of Harrow v Knight at paragraph 5:
” the Tribunal had to find:
- that Mr Knight had made a protected disclosure (or disclosures);
- that he had suffered some identifiable detriment (or detriments);
- that [the Council] had “done” an act or deliberate failure to act (for short, an “act or omission”) by which he had been “subjected to” that detriment; and
- that that act or omission had been done by [the Council] “on the ground that” [Mr Knight] had made the protected disclosure identified at (1).
- At  That elision of the doing by the employer of an act and the suffering by the employee of the detriment meant that the Tribunal never focused on what precisely it was that the Council did or failed to do. That was potentially important, not only because you need to identify the act in order to ask on what
In the second and more recent case, this time before the Employment Appeal Tribunal, was Chemistree v Gahir in which the EAT suggests that when considering claims by employees for victimisation for having made protected disclosures Employment Tribunals might take the following approach:
- Each disclosure should be separately identified by reference to date and content.
- Each alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered as the case may be, should be separately identified.
- The basis upon which each disclosure is said to be protected and qualifying should be addressed.
- Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation. It is not sufficient for the Employment Tribunal to simply lump together a number of complaints, some of which may be culpable, but others of which may simply have been references to a checklist of legal requirements or do not amount to disclosure of information tending to show breaches of legal obligations. Further, unless the Employment Tribunal undertakes this exercise it is impossible to know which failures or likely failures were regarded as culpable and which attracted the act or omission said to be the detriment suffered. If the Employment Tribunal adopts a rolled up approach it may not be possible to identify the date when the act or deliberate failure to act occurred as logically that date could not be earlier than the latest act or deliberate failure to act relied upon and it will not be possible for the Appeal Tribunal to understand whether, how or why the detriment suffered was as a result of any particular disclosure; it is of course proper for an Employment Tribunal to have regard to the cumulative effect of a number of complaints providing always they have been identified as protected disclosures.
- The Employment Tribunal should then determine whether or not the Claimant had the reasonable belief referred to in S43 B1 of ERA 1996 under the ‘old law’ whether each disclosure was made in good faith; and under the ‘new’ law introduced by S17 Enterprise and Regulatory Reform Act 2013 (ERRA), whether it was made in the public interest.
- Where it is alleged that the Claimant has suffered a detriment, short of dismissal it is necessary to identify the detriment in question and where relevant the date of the act or deliberate failure to act relied upon by the Claimant. This is particularly important in the case of deliberate failures to act because unless the date of a deliberate failure to act can be ascertained by direct evidence the failure of the Respondent to act is deemed to take place when the period expired within which he might reasonably have been expected to do the failed act.
- The Employment Tribunal( under the ‘old law’ should then determine whether or not the Claimant acted in good faith and under the ‘new’ law) whether the disclosure was made in the public interest.
It is almost an aside to this posting but the Claimant was employed as a part-time assistant occupying the role of Responsible Pharmacist. Her employment lasted 18 days, of which she was in post for only 7. Those 11 days included a Bank Holiday weekend. Whilst the EAT agreed that the employee could not have suffered much, they still found in favour of the employee. A Polkey deduction will be applied!
CItation:  UKEAT 0449_12_2703
Linked case  IRLR 140