What remedy is available to a whistleblower when another worker causes them a detriment pursuant to s.47A(1A)?
In circumstances where the employer is not liable, a whistleblower can only obtain a declaration, and no compensation is payable by the worker who subjected the whistleblower to the detriment.
In Royal Mail Group Limited v. Jhuti (UKEAT/0020/16/RN), 19 May 2016, the Honourable Mr Justice Mitting held that a declaration was the only available remedy.
Interestingly the case also addressed the anomaly caused by The Co-operative Group Ltd v Baddeley UKEAT/0415/12/JOJ, 22 February 2013, 15 November 2013 [2014] EWCA Civ 658 and subsequently in Ahmed v City of Bradford Metropolitan District Council UKEAT/0145/14/KN, 27 October 2014. These two cases consider situations where someone responsible for a detriment or the dismissal of a whistleblower, takes that step innocently, having been duped or manipulated by another who is influenced by the whistleblowers disclosure.
Sitting in the Court of Appeal in Baddeley Underhill LJ confirmed that where ‘the actual decision-maker acts for an admissible reason but the decision is unfair because … the facts known to him or beliefs held by him have been manipulated by some other person involved in the disciplinary process who has an inadmissible motivation – for short, ‘an Iago situation’ then it was possible for the motivation of a manipulator (the Iago character) in principle to be attributed to the employer. However he appeared to limit this to situations where the Iago character had some responsibility either for an investigation or some other process.
In Ahmed, a bad reference was written because of a protected qualifying disclosure. The person finding Ahmed unsuitable for redeployment accepted that they had relied upon the reference, but they had not known it was motivated by a disclosure and therefore they had acted innocently. Whilst Ahmed’s case was dismissed at first instance, on Appeal, Judge Serota confirmed that the motivation of the manipulator could in principle be attributed to the employer, but the factual findings were not present so it was remitted to a fresh Tribunal.
Royal Mail is the first case, building on the rationale in Baddeley and Ahmed to establish that link. In so doing Mitting J stated (para 34) “I am satisfied that, as a matter of law, a decision of a person made in ignorance of the true facts whose decision is manipulated by someone in a managerial position responsible for an employee, who is in possession of the true facts, can be attributed to the employer of both of them.”
It does not appear clear whether Mitting J’s decision that there is no remedy against a co worker, following his statutory determination as to the reach of section 47B(1A), influenced the establishment of that link for Jhuti, but his determination that it is limited to a declaration only is binding on any subsequent Tribunal.
Whether Parliament intended a cause of action against another worker to be so practically useless, against a backdrop of paying for the privilege, remains to be seen.
To read the full judgment, please click here.
Jhuti, Royal Mail, Baddeley, Jack Mitchell, whistleblowing
