Whistleblowing: Knowledge of decision maker (EAT)

James Williams

  • The dismissal of an employee will be automatically unfair if the reason, or principal reason, for their dismissal is that they have made a “protected disclosure” (section 103A, ERA 1996).
  • Employees and workers are also protected from being subjected to any detriment on the ground that they have made a protected disclosure (section 47B, ERA 1996).
  • Section 103A of the ERA 1996 creates two questions:
  1. Was the making of a disclosure the reason (or principal reason) for the dismissal or the detrimental treatment?
  2. Was the disclosure in question a protected disclosure within the meaning of the ERA 1996?

If the answer to both questions is yes, the employee will have been unfairly dismissed and/or have suffered a detriment.

The first question requires an enquiry into what facts or beliefs caused the decision-maker to decide to dismiss.

In the case of Fry v Kingswood Learning and Leisure Group Ltd the High Court needed to consider the extent of the decision maker’s knowledge of the protected disclosures at the time of dismissal.

On 5th November 2018 the claimant commenced employment with the respondent.  She made two protected disclosures in March and April 2020 to two Directors separately.

On 20th July 2020 the claimant was told by her line manager that her role was at risk of redundancy.  On 22nd July there was the first redundancy consultation, on 24th July the second, and on 27th July 2020 there was a meeting between the claimant and her line manager in which the claimant’s employment was terminated due to redundancy.  The decision to dismiss had been taken by 27th July 2020.

The Employment Tribunal found that the claimant’s line manager was not aware of the protected disclosures until October 2020.  The EAT agreed.  The reason (or principal reason) for the dismissal was redundancy and not the making of a protected disclosure.  Therefore, the claim and appeal failed.

Case: Fry v Kingswood Learning and Leisure Group Ltd [2023] EAT 166

James Williams – Solicitor

James Williams

I am a qualified Employment Law and HR Solicitor. I specialise in acting for schools and advise on all aspects of employment law and HR including attending employee meetings, advising senior leaders, conducting redundancy consultations, drafting contracts of employment, advising on policies and procedures and negotiating settlement agreements.