Jahad Rahman from Rahman Lowe Solicitors: “On the issue of causation in a whistleblowing claim, did the person who subjected the Claimant to a detriment have to have knowledge of the protected act? Yes, held the EAT in Anastasiou v Western Union Payment Services.
In July 2010, the Claimant was interviewed as part of the Respondent’s investigation into another employee’s complaint of being marginalised due to concerns about the accuracy of information being disclosed to investors/potential investors in relation to the Respondent’s performance and prospects. The Claimant similarly expressed concerns about the prospect of the Respondent meeting performance targets and in particular, the goal of achieving 10,000 new retail locations.
Shortly after this, he was dismissed for fraudulent expenses claims.
The Employment Tribunal (‘ET’) dismissed the complaints of automatic unfair dismissal and ordinary unfair dismissal, but found that the Claimant had been subjected to certain detriments for making a protected disclosure. The detriments complained of included ‘side-lining’ the Claimant at work, making enquiries into his expenses claims and referring to the results of those enquiries to a disciplinary hearing.
The EAT followed Cavendish Munro v Geduld and upheld the finding that the Claimant had disclosed “information” during the investigation, rather than express a personal opinion on a business strategy and that the information disclosed was sufficient to constitute a potential breach of legal obligation on the Respondent’s part, i.e., whether misleading information had been provided to investors/potential investors. In the EAT’s view, the legal obligation in issue was apparent to all involved as a matter of common sense. Therefore, the ET was entitled to find that there had been a qualifying whistleblowing disclosure.
However, the EAT held that the ET failed to demonstrate how it concluded that the protected disclosure materially influenced the Respondent’s treatment of the Claimant because there was no finding of fact in respect of any of the detriments that the individuals involved had any knowledge of the protected act.
The final issue for consideration by the EAT was whether the ET’s departure from the agreed list of issues constituted a breach of the rules of natural justice. The EAT found that “re-casting” of the claim had occurred and that the decision to add a further detriment to the list of agreed issues obliged the ET to permit the parties to make further representations”.