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In a recent case, the Employment Appeal Tribunal (EAT) held that an Employment Tribunal (ET) should not have struck out a claim for unfair dismissal for having made protected disclosures on the basis that the employee had not told the employer about the disclosures.
In Schaathun v Executive & Business Aviation Support Ltd, Ms Schaathun claimed that she had been unfairly dismissed as a result of making protected disclosures about tax, financial and regulatory dealings by her employer, Executive & Business Aviation Support Ltd (EBAS Ltd). Ms Schaathun made the disclosures to legal representatives, HMRC and the Civil Aviation Authority.
The ET found that there was no automatic unfair dismissal on the grounds of making protected disclosures and struck out Ms Schaathun's allegations in this respect. The ET considered that the disclosures could not have formed part of the decision to dismiss Ms Schaathun as, at the time of dismissal, she had not told EBAS Ltd about them directly. The ET found that Ms Schaathun had been unfairly dismissed on ordinary principles but concluded that even if EBAS Ltd had followed a fair procedure, Ms Schaathun would have been dismissed at the same time in any event therefore Ms Schaathun received no compensatory award for loss of earnings. As a result Ms Schaathun appealed against the ET's decision to strike out her whistleblowing claim.
The EAT allowed the appeal. The EAT found that the ET had failed to consider and establish whether EBAS Ltd actually knew about the disclosures at the time of the dismissal by any other means and therefore whether the dismissal could still have been linked to the disclosures. Accordingly, the dismissal of the claim of automatic unfair dismissal for having made protected disclosures was set aside and remitted to a differently constituted tribunal.
The case highlights the high hurdle that an employer will have to overcome in an application to strike out a claim of unfair dismissal on the grounds of lack of knowledge of protected disclosures at the time of the decision to dismiss. The EAT's findings show that before a whistleblowing claim is struck out in these circumstances a tribunal should make investigations as to whether an employer actually knew about disclosures from any source. It should not be assumed that an employer did not hold the relevant knowledge just because it had not been directly informed by an employee.