Protected disclosures: was moving an employee to a different team a detriment?

Once a worker makes a protected disclosure, they gain certain legal rights irrespective of their length of service. Dismissing an employee for making a protected disclosure is an automatic unfair dismissal. Additionally, it's unlawful to subject a worker to a detriment because they have blown the whistle. 

Here we focus on the latter and explore the case of Ford v The Scottish Ministers where the Employment Appeal Tribunal considered what it takes to establish a causal link between a protected disclosure and detriment.

The law

The test for whether an employee has suffered a detriment after making a protected disclosure involves determining if a reasonable employee would, or might take the view that the treatment they received was to their detriment. 

It's a broad test. The disclosure must have played more than a trivial part in the employer's decision and there needs to be a causal link between the disclosure and the mistreatment. Part of that process involves analysing the mental processes of the decision maker.  

It's an easier test than the one that applies where someone is dismissed for making a protected disclosure.

Facts

Mr Ford, a pensions administrator at the Scottish Public Pensions Authority (SPPA), believed that a number of police injury benefit cases were in a ‘poor state’. There were inconsistencies in how the relevant regulations had been applied so that some police officers had been paid too much and others not enough. 

Mr Ford raised his concerns to his employer; he was then seconded into another department. He was told that this was “…until the Police Injury issues raised have been satisfactorily resolved…This is not a punishment for bringing your concerns to my attention but is to give you a break from the casework with which you have concerns until they are resolved.”

Mr Ford was unhappy about the secondment and thought he was being punished for raising concerns about the police injury benefit cases.

He also had concerns about the administration of the firefighter injury benefit scheme. He submitted an online form raising these concerns to Audit Scotland (the body responsible for checking that public money is spent efficiently and effectively). Although Mr Ford filled out the form, he submitted it the name of Mr Dunn, an acquaintance. Together, Mr Ford and Mr Dunn met with Audit Scotland to discuss their concerns. 

Mr Ford also wrote emails raising similar issues to the First Minister and the Cabinet Secretary for Finance, Economy and Fair Work, again sent in Mr Dunn's name.  

The SPPA launched an investigation into seven allegations of alleged misconduct including that he reported and met with Audit Scotland despite SPPA carrying out a full investigation and had falsely accused SPPA of misusing public funds, corruption, and of telling staff to give incorrect information to members or ‘revolt and be disciplined’. 

Mr Ford was invited to attend a disciplinary hearing on the following grounds:

• sharing official information with Mr Dunn and using Mr Dunn's identity in correspondence about the SPPA
• failing to comply with management instructions 
• telling colleagues they will be punished for not obeying orders and for reporting erroneous and fraudulent payments
• writing that he had ‘no option other than to revolt and be disciplined’ and ‘you allow us to be tortured and punished’ in the emails he sent to the First Minister and the Cabinet Secretary for Finance, Economy and Fair Work. 

Mr Ford was summarily dismissed for misconduct. He claimed that his dismissal was automatically unfair and that he had been subjected to detriments because he had made protected disclosures. 

Decision of the employment tribunal

The tribunal held that his concerns about the police injury benefit cases were protected disclosures. But they said that he had not been seconded because he had made those disclosures. There was a link between making the disclosures and being asked to move departments but there were other reasons unrelated to that which influenced its decision.

In relation to the issues raised to Audit Scotland, the First Minister, and the Cabinet Secretary, the tribunal found that these were also protected disclosures. 

Mr Ford argued that being investigated for two of the allegations amounted to a detriment. The tribunal rejected this. It said that he had been investigated for his conduct - not for raising protected disclosures. 

It also held that the main reason for Mr Ford's dismissal was his conduct. That part of his claim, therefore, also failed.

Mr Ford appealed against both findings.

Decision of the EAT

The EAT said that the tribunal's decision on the unfair dismissal point was sound. But its decision regarding Mr Ford's detriment claims was not because:

• The tribunal had failed to properly explain why it decided that the secondment was not a detriment and had not applied the correct legal tests to determine this
• The decision to move Mr Ford was influenced by his disclosure in a way that was more than trivial; and
• The secondment was plainly something Mr Ford was unhappy about and which he believed amounted to a detriment. If the tribunal thought that a reasonable worker would not have considered it to be a detriment, they needed to say that and explain why

The EAT remitted the detriment claim back to the tribunal to consider if the secondment and the disciplinary investigation were detriments on the ground that Mr Ford had made protected disclosures. 

This case throws up some thought-provoking questions for employers:

How do you spot a protected disclosure? 

There is a specific legal test but broadly it's when a worker discloses information which they reasonably believe is in the public interest and tends to show one or more of certain types of wrongdoing including criminal offences, failing to comply with legal obligations, miscarriages of justice, endangerment of health or safety, damage to the environment, or deliberate concealment of any of these things. They then have to tell the right person - which in most cases is their employer in the first instance. 

Employees don't have to explicitly state that they are making a protected disclosure, nor do they have to put it in writing. Most people, however, include it in an email, grievance letter or any other document.

There's extensive litigation about all of the highlighted words.

What steps do we need to take once someone has made a protected disclosure?  

Your managers need to have a broad understanding of what may amount to a protected disclosure so that they can react appropriately if someone they manage raises an issue. 

Most employers have a whistleblowing policy. Managers need to make sure that they follow this and ask for support if they need it (as they may not be the right person to deal with the allegations). All complaints need to be properly investigated, and any follow-up action taken where necessary. It's also important to keep the whistleblower in the loop and let them know the outcome. 

And, given that employees are protected from detriment and dismissal because they've made a protected disclosure, managers need to understand that they can't punish them - even if the organisation doesn't believe that it has done anything wrong and rejects the complaint.  

Does this mean your hands are tied after someone has blown the whistle?

Not necessarily. 

It may be appropriate to take disciplinary action against an employee because of something that has happened as a result of the protected disclosure (such as a breach of confidentiality) but you must not retaliate against them for making the disclosure.

Of course, decisions will still need to be taken in the future that impact that employee. They will have appraisals where their performance is assessed, they may commit an act of misconduct, or they may find themselves at risk of redundancy. Whatever happens next, it's important that decision-makers do not allow the fact that they have made a protected disclosure to cloud their judgement or influence their decision. 

As this case shows, even if there are other reasons for the act or omission which disadvantages the employee, if this has been materially influenced in more than a trivial way, by the protected disclosure then that's enough to establish that causal link. 

The burden of proof rests on the employer to show the reason for the detriment and the tribunal will look at what was really in the mind of the decision maker and the facts of the case. If an employer is considering doing something that could be reasonably considered to be to their disadvantage, you must ensure that your rationale for doing this is not linked in any way to their disclosure. Make sure you have written evidence that backs up your rationale. 

And, if you are considering dismissing someone who has blown the whistle, there needs to be clear blue water between the disclosure and your reasons for dismissing them. If there's any hint that you dismissed them because of what they said, you'll be on the back foot from the start.

It's a good idea to take legal advice given the risk and complexity if you find yourself faced with such a situation. Please speak to Elaine Huttley if you need advice on this.

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