In the recent case of Nicol v World Travel and Tourism, the Employment Appeal Tribunal (EAT) held that the decision-maker in a whistleblowing claim ought to have some knowledge of what the employee is complaining or expressing concerns about for the employer to be liable.

In this article, employment partner Clive Howard considers the decision and its impact upon whistleblowers.

The facts

Toby Nicol, the claimant, was vice-president of communications and PR at the World Travel and Tourism Council (WTTC), until he was dismissed in October 2019.

In 2022, he brought an Employment Tribunal claim against the company on the grounds that he had been made redundant after making a number of protected disclosures.

The claimant made a series of alleged protected disclosures about the CEO of the company to ‘Person A’ at WTTC, who then informed ‘Person B’ by email, who subsequently dismissed the claimant for reasons of redundancy. It was accepted that there was no genuine redundancy.

The EAT upheld the decision of the Tribunal in holding that the decision-maker did not receive sufficient detail of the protected disclosure to be fixed with liability. Here, the Tribunal had found that the email had not come to the attention of the decision-maker, even though she had received it, and the EAT relied on that finding. The Tribunal said ‘Person A’ and ‘Person B’ “never considered the claimant was actually a whistleblower and that this played no part in their decision to dismiss him”.

The EAT held that the decision-maker ought to have known at least something about what the employee was complaining or expressing concerns about. The law relating to victimisation was also cited, where it was accepted that knowledge of the protected act was essential to establishing liability.

Going forward, much will turn on what is meant by sufficient detail of the protected disclosure. The EAT considered that its decision would not undermine the protection afforded to whistleblowers on the basis that invariably the substance and content of the disclosure would be well known to the decision-maker.

The decision appears to be a harsh reminder that an individual who makes a protected disclosure to the employer and who is then dismissed will not necessarily have whistleblowing protection and that it is not enough that the other person simply knew whistleblowing had taken place.

If you have questions or concerns about whistleblowing, please contact Clive Howard.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.