In this case, the EAT held that an employment tribunal had been wrong to find that seconding an employee to another team, and opening a disciplinary investigation into allegations against him, did not amount to detriments on the ground that the employee had made protected disclosures.
Facts
Mr Ford worked for the Scottish Public Pensions Authority (SPPA) as a pensions administrator, working on NHS injury benefits and, from 2015, injury benefits for police officers and firefighters.
Mr Ford was concerned that the SPPA was applying the regulations applicable to police officers’ injury benefits incorrectly, and he raised this with senior management first by email, and then at a meeting in August 2016. The information Mr Ford shared at that meeting was classed as his first protected disclosure.
In March 2017, after Mr Ford had again raised his concerns about the way the SPPA was handling police officers’ injury benefits, the SPPA decided to move Mr Ford away from police and firefighter injury benefit work and place him on secondment to another team. In an email explaining this decision, the SPPA stated that the secondment was not a punishment for raising his concerns, but was intended to give Mr Ford a break from the casework with which he had concerns until those concerns were resolved. Although not mentioned in the email, the SPPA also intended the secondment to alleviate a breakdown in the relationship between Mr Ford and his line manager.
Mr Ford also had concerns about the way the firefighter injury benefit scheme was being administered. He raised these concerns with the help of an acquaintance, Mr Dunn, by email to Audit Scotland. Mr Ford and Mr Dunn then attended a meeting with Audit Scotland in March 2018, at which Mr Ford explained his concerns. Mr Ford’s statements at that meeting also amounted to protected disclosures.
The final protected disclosure was an email written by Mr Ford, but sent in Mr Dunn’s name, to the First Minister of Scotland and to the Cabinet Secretary for Finance, Economy and Fair Work in June 2018 reiterating the concerns Mr Ford had raised with Audit Scotland.
In February 2019, the SPPA opened a disciplinary investigation into Mr Ford’s conduct. The investigation addressed multiple allegations, two of which directly referred to Mr Ford’s conduct in raising his concerns with Audit Scotland and with the First Minister and Cabinet Secretary.
Not all of the disciplinary allegations were taken forward, and those that were did not refer to Mr Ford’s communications with Audit Scotland. One of the allegations taken forward related to other emails sent by Mr Ford to the First Minster stating that he had “no option other than to revolt and be disciplined”, and to the Minister for Public Finance and Digital Economy in which he stated, “you allow us to be tortured and punished”. Mr Ford was summarily dismissed following a disciplinary hearing on 23 May 2019.
Mr Ford claimed that the decisions to put him on secondment and open a disciplinary investigation amounted to whistleblowing detriment, and that his dismissal was because he had made protected disclosures and was therefore automatically unfair. The employment tribunal dismissed all of Mr Ford’s claims, holding that: putting Mr Ford on secondment was not a detriment and was not due to Mr Ford’s protected disclosures; the SPPA did not initiate the disciplinary investigation because of Mr Ford’s protected disclosures; and his dismissal was due to his conduct which was properly separable from his protected disclosures. Mr Ford appealed.
The EAT upheld Mr Ford’s appeal in part. It held that being placed on secondment could potentially be a detriment, noting that Mr Ford subjectively regarded it that way. Accordingly, if the tribunal considered that a reasonable worker would not have viewed it as a detriment, the tribunal ought to have said so, and explained why. The EAT also explained that for a whistleblowing detriment claim to succeed the disclosure must have had a material influence on the decision to impose the detriment, in the sense of being “more than trivial”. The tribunal had found a link between the making of the protected disclosure and the decision to second Mr Ford. In holding that the decision was not on the ground of the protected disclosure, the tribunal appeared to have misapplied this test.
The EAT also found fault with the tribunal’s conclusion that opening the disciplinary investigation was not on the ground of Mr Ford’s protected disclosures. The tribunal had not addressed the apparent correlation between the allegations that referenced Mr Ford’s conduct in raising his concerns with Audit Scotland and the First Minister and Cabinet Secretary, and the protected disclosures Mr Ford had made when doing so. The EAT therefore sent the case back to the tribunal for it to reconsider whether putting Mr Ford on secondment and opening the disciplinary investigation amounted to detriments on the grounds of his protected disclosures.
However, the EAT dismissed Mr Ford’s appeal in relation to the fairness of his dismissal. The particular emails that were considered as part of the disciplinary allegations that were taken forward had not themselves been found to be protected disclosures. Further, even if they contained information that might have constituted protected disclosures, they were expressed in such a way as to give rise to issues of conduct. The tribunal was entitled to apply the distinction drawn in the Kong case (see our previous alert here) between the making of a protected disclosure on one hand and conduct merely associated with or indirectly related to the disclosure on the other.
What does this mean for employers?
This case is a reminder that the line between taking action against an employee for whistleblowing and taking action against them for their conduct while they are whistleblowing can be difficult to draw. An employee will only succeed in a whistleblowing claim for automatically unfair dismissal if their protected disclosure was the sole or principal reason for the dismissal. In a detriment claim, by contrast, all that is required is for the protected disclosure to have influenced the employer’s decision to impose the detriment in a way that was “more than trivial”. Employers wishing to discipline an employee who has made protected disclosures for conduct that in any way relates to those disclosures should therefore be particularly careful how they frame any disciplinary allegations.
