In whistleblowing claims, workers are protected if they have suffered a detriment when they make a protected disclosure.
The crucial question in any whistleblowing case is to decide whether a protected disclosure had a material influence in the employer’s treatment towards the whistleblowing worker. A significant issue is whether the individual who allegedly subjected the whistleblowing worker to a detriment had personal knowledge of the protected disclosure.
There has been a significant number of Employment Tribunal cases which have sought to address this issue and the recent case of Malik v Cenkos Securities looked at this particular issue.
Dr Malik made a number of protected disclosures to his employer Cenkos Securities about conflicts of interest and failure to carry out due diligence checks. However allegations were also made by the Company against Dr Malik at the same time. The upshot is the Company, namely the Head of Compliance suspended Dr Malik and started an investigation. Dr Malik alleged the Head of Compliance was motivated by Dr Malik’s protected disclosure and wanted him to be removed from the business.
Several detriments were alleged by Dr Malik which supported his decision to resign on 8th December 2015. A number of claims were brought by Dr Malik, namely constructive dismissal, victimisation and discrimination. He lost all of his claims and appealed.
One of the appeal points was whether the Head of Compliance had personal knowledge of Dr Malik’s protected disclosure and if so, whether that motivated the Head of Compliance’s decision in how they treated Dr Malik.
The Employment Appeal Tribunal dismissed Dr Malik’s appeal. The Judge held the Head of Compliance was not motivated by Dr Malik’s protected disclosure, made his decisions alone and was not influenced by anyone involved in the whistleblowing investigation.
The question of personal knowledge and an individual’s motivation is a significant point in any whistleblowing claim. This case confirms that in order to succeed with a whistleblowing claim, a Claimant must prove the Respondent had personal knowledge of the protected disclosure and the Respondent was motivated by it.
Cenkos Securities was lucky in this case, but it is a useful reminder to businesses that they should have effective whistleblowing and disciplinary policies, so that whenever disclosures and disciplinary allegations are investigated, they are done so independently so that decision makers are not influenced in any way, especially when it is alleged an individual has made a protected disclosure.
For more information about whistleblowing and disciplinary issues, contact Sally Morris on 01905 610410 or email sally.morris@mfgsolicitors.com.
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