Employment Law Speed Read – 05/02/18
5th February, 2018
This week we look at a case where the Employment Appeal Tribunal (EAT) considered whether a person who subjects a whistleblower to a detriment has to be personally motivated by the protected disclosure.
Malik v Cenkos Securities Plc
In Malik v Cenkos Securities Plc the EAT held that in order for a whistleblowing detriment claim to succeed, the person who subjects the whistleblower to a detriment must have personal knowledge of their protected disclosures.
Dr Malik (M) was employed by Cenkos Securities Plc (CS) as their Head of Life Sciences Research from January 2012.
Between September 2014 and October 2015 M made a series of protected disclosures to CS regarding due diligence and conflicts of interest.
During September 2015, CS became aware that M had not disclosed a shareholding which posed a serious conflict of interest. CS’s Head of Compliance ordered an investigation and suspended M citing his alleged failure to disclose the shares. M was told that he faced allegations of breaching CS’s compliance manual as well as the Financial Conduct Authority rules.
On 8 December 2015, M resigned alleging that he had been constructively dismissed, and that the principle reason for his dismissal was the protected disclosures he had made.
M then brought claims of constructive unfair dismissal, automatic unfair dismissal and detriment in relation to whistleblowing and victimisation. M argued that the Head of Compliance was motivated by his protected disclosures and that there was a conspiracy to remove him from the business.
The Employment Tribunal found that the Head of Compliance did not know of the protected disclosures, and M was unsuccessful in his claims.
Employment Appeal Tribunal
M appealed the ET’s decision, arguing that they had neglected to consider whether there was a “chain of command” in his case.
His argument was that although the Head of Compliance may not have had personal knowledge of the protected disclosures, it should have been considered whether the protected disclosures had still materially influenced the Head of Compliance’s decision because someone in the chain of command had knowledge and influence. He further argued that there had been a conspiracy within CS to get rid of him.
The Employment Appeal Tribunal dismissed the appeal and held that a person who is alleged to have subjected a whistleblower to a detriment must personally be motivated by the protected disclosure in order for a detriment claim to succeed. Another person’s knowledge and motivation cannot be imputed.
This case demonstrates that Claimants must be able to show that the person who made the alleged detriment, did so because they were personally motivated by the protected disclosure. It will not be enough for Claimants to claim detriment on the back of evidence which shows that other people within the organisation had knowledge of the disclosures, without any evidence that there was personal knowledge on behalf of the person subjecting them to a detriment.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.