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Detriment and knowledge

The Employment Appeal Tribunal in the case of Malik v Cenkos Securities Plc has held that a person who is alleged to have subjected a whistleblower to detriment must personally be motivated by the protected disclosure for the detriment claim to succeed.

Background

The Claimant was employed by Cenkos Securities Plc (“the Company”). During his employment, the Claimant made various protected disclosures. The Claimant was suspended when the Company’s Head of Compliance became aware of an alleged conflict of interest. The Claimant believed that the issues raised by the Head of Compliance were motivated by his protected disclosures and there was a conspiracy against him to remove him from the Company.

The Claimant resigned and claimed constructive dismissal, automatic unfair dismissal, detriment on the grounds of whistleblowing and victimisation.

This article will focus on the detriment claim.

The Law

Under section 47B of the Employment Rights Act 1996, a worker has the right not to be subjected to any detriment on the ground that they have made a protected disclosure.

When considering detriment claims, a tribunal will consider whether the protected disclosure materially influenced the employer’s treatment of the employee.

Decision

The claims were dismissed by the Employment Tribunal. The Claimant submitted an appeal that the Tribunal had failed to consider whether his case involved a “chain of command” whereby a manager takes detrimental action against a worker in ignorance of the protected disclosure but the manager’s action is influenced by someone else in the chain of command who is motivated by the protected disclosure(s).

The Employment Appeal Tribunal (“EAT”) dismissed the appeal.

The Head of Compliance had not been motivated by the Claimant’s protected disclosures and he had not been influenced by anyone else. The EAT held that in detriment claims, the person who subjects a whistleblower to a detriment must personally be motivated by the disclosure. Another person’s knowledge and motivation cannot be attributed to an innocent decision-maker.

Comment

To bring a successful detriment claim, claimants will need to provide evidence that the person who subjected them to the detriment had knowledge of the protected disclosure and were personally motivated by it. This differs slightly from the position in whistleblowing dismissal claims where the motivation of someone other than a dismissing officer may be attributed to the employer.

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