Whistleblowing and the Importance of Proving Motive

Establishing that an employee has made a protected disclosure is the first step on the path to success in any whistleblowing claim. However, as a case concerning a dismissed care homes manager showed, it is often much harder to prove that detrimental treatment is motivated by such a disclosure (Penicela v Sanctuary Care Ltd).

The woman had been in post for only about six months when she was dismissed at the end of her probationary period. Her employer asserted that she was dismissed on grounds of capability or performance. She contended, however, that the motive underlying her dismissal was that she had made protected disclosures by raising concerns that understaffing was putting residents' safety at risk.

Following a hearing, an Employment Tribunal (ET) found that she had made a single protected disclosure. In rejecting her claim of automatic unfair dismissal, however, it found that the disclosure played no part whatsoever in the decision to terminate her contract. The decision-maker was wholly uninfluenced by the disclosure and the reason for her dismissal was, as the employer contended, her lack of capability.

Upholding her challenge to that outcome, the Employment Appeal Tribunal noted that the decision-maker had in part relied on a probation report prepared by the woman's former line manager. It was the central plank of the woman's case that it was the report that prompted her dismissal and that, in writing it, the line manager was herself influenced by the disclosure.

In asking itself whether the disclosure was the principal reason for her dismissal, the ET was thus required explicitly to consider the motives of not only the decision-maker but also the line manager. The ET had not spelt out in its decision that it had taken that course. The issue was sent back to the same, or a similarly constituted, ET for fresh consideration.