Whistleblowing protections: Nicol v World Travel and Tourism Council

The protection of whistleblowers is a fundamental aspect of employment law which aims to ensure transparency and accountability within the workplace. In this article we report on a recent case concerning whistleblowing detriment and dismissal. This case confirms the level of knowledge required to make a valid protected disclosure to decision-makers.

Whistleblowing: A ‘protected disclosure’

Whistleblowers benefit from two different forms of protection. Employees are protected from being unfairly dismissed if the principal reason is because they have made a ‘protected disclosure’.  Those classed as ‘workers’ (which includes employees) are protected from suffering any detriment i.e. suffering poor treatment or bullying because they have made a ‘protected disclosure’.

A protected disclosure requires the disclosure of information which a worker reasonably believes shows a breach of a legal obligation or certain other wrongdoings in the public interest.

This was explored in the recent case of Nicol v World Travel and Tourism Council.

The case

Mr Nicol (the claimant) was employed by World Travel and Tourism Council (the company) as VP of Communications and PR. Mr Nicol raised concerns regarding the company’s CEO which he alleged were ‘protected disclosures’ under the statutory whistleblowing regime.

The claimant believed that he had made valid a protected disclosure in an email to two HR consultants engaged by the company.  One of them informed the CEO that complaints about her had been made, but no details of the content of the complaint was provided. The claimant was subsequently dismissed by the CEO.

The claimant brought claims for automatic unfair dismissal and detriment because he believed that the reason for his dismissal was because he had made protected disclosures. The company claimed that Mr Nicol’s employment was instead terminated due to redundancy.

The Employment Tribunal held that although the claimant had made a protected disclosure, the details of the disclosure had not been communicated to the CEO, who dismissed him. The Tribunal’s reasoning was based on the fact the ‘disclosures’ did not disclose any information but rather, were formed of the claimant’s criticisms of his employer and did not give rise to notification of a breach of any legal obligation. The effect of the Tribunal’s decision is such that because the details of the disclosure were not clear to the CEO, and the company did not consider the claimant to be a whistleblower, the protected disclosure did not form part of their considerations in dismissing him.

On appeal to the Employment Appeal Tribunal (EAT) the claimant’s case was dismissed and the Tribunal’s finding was upheld to confirm that because insufficient detail about the protected disclosure had been given to decision maker, this could not have been the reason for his dismissal.

This decision confirms that while there is no need for a decision-maker to know that the disclosure itself is protected but rather, that it is necessary to know the substance of the disclosure in sufficient detail, to give rise to whistleblowing protection and the right to make a claim.

Implications for employers

While the decision is helpful in clarifying the requirements for making a valid protected disclosure, employers should tread with caution on receipt of a purported protected disclosure. The decision does not mean that employers can turn a blind eye to decision-makers by preventing them from receiving the contents or having knowledge of the substance of a protected disclosure.

This case serves as a helpful reminder to employers that they should ensure their whistleblowing policies and procedures clearly state the procedure to be followed by employees who wish to ‘blow the whistle’.

Employers should also take steps to investigate and take any protected disclosures seriously, so that employees do not suffer any detriment or unfair treatment which may give rise to liability. If a dismissal is made because an employee has made a protected disclosure, this is an automatically unfair reason and employers will be at risk of liability to an unfair dismissal claim in the Employment Tribunal.

If you have any questions about whistleblowing, or any other employment law issue, please do contact a member of our Employment team.