A Claimant who brings a whistleblowing claim has to overcome two hurdles. The first hurdle is whether he has made a protected disclosure within the meaning of the legislation which involves whether what was said or written conveyed information and was made by the Claimant in the public interest. The second hurdle and the one on which many cases in practice turn, is what the lawyers call the causation question. Was the making of the protected disclosures the reason why the Claimant was treated in the way in which he was treated? This is known as the “reason why” question.
The fact that the protected disclosures and the detrimental treatment are related does not answer the reason why question. Answering it requires an analysis of the mental processes which caused the employer to act in the way in which he did. This emphasis on looking at the motivation (conscious or unconscious) of the decision maker means that it is not sufficient for the Claimant to show that “but for” the disclosures, the detrimental treatment of the Claimant would not have occurred. In other words the protected disclosures might have given rise to a situation which has come about and which would not have come about but for the disclosures, yet the disclosures might not in fact have been the reason for the employer’s actions towards the Claimant.
A whistleblower has two potential claims. One is for the detriment which he has suffered because he whistle blew. He can bring this detriment claim whilst remaining an employee. Detriment is not defined in the legislation but in essence it is treatment of an employee/worker which a reasonable person would complain about. This need not be financial and the threshold for establishing a detriment is a low one. The other potential claim which a whistleblower has is for automatic unfair dismissal, assuming of course that he was dismissed because he whistle blew (without any cap on the amount of compensation and without the employee having had to have had a minimum period of employment in order to bring the automatic unfair dismissal claim). If he has suffered a detriment short of dismissal and has been dismissed, the Claimant can bring a claim both for detriment and for automatic unfair dismissal.
The causation test for a detriment claim is different from the causation test for an automatic unfair dismissal claim. In a detriment claim if the Claimant shows that he has made a protected disclosure and that he subsequently suffered a detriment, the employer has the burden of showing that the disclosure did not materially influence why he acted or deliberately failed to act towards the Claimant. In an automatic unfair dismissal claim the Claimant has to show that the disclosures were the reason or, if more than one, the principal reason for his dismissal. There can only be one principal reason for a dismissal and it follows from this, that having to show that the disclosures were the reason or principal reason for the dismissal is a hard test for the Claimant to satisfy.
As in the case of a claim for automatic unfair dismissal, there is a 3 months time limit (less one day) in which to bring a claim. In a case of automatic unfair dismissal the 3 months starts to run from the date of dismissal, but in a detriment claim it is important to realise that the 3 months time limit runs from the date when the act or deliberate failure to act which gave rise to the detriment, occurred. This means that how long the detriment lasts is beside the point in calculating the 3 months time limit; what is important is that the cause of the detriment, namely the act or the deliberate failure to act, must have taken place within the 3 months before the issue of the Tribunal proceedings. Thus a Claimant has to identify the act or the deliberate failure to act which caused him a detriment so as to calculate whether or not he is in time to bring a detriment claim. The 3 months time limit can be extended if the Claimant can persuade the Tribunal that it was not reasonably practicable to present his claim within the 3 months time limit.
Whistleblowing claims are very technical but amongst the technical points, a Claimant should not lose sight of what at the end of the day is a common sense point; the need for the Tribunal to make a finding that the way in which the Claimant was treated, was because he had made a protected disclosure.