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Whistleblowing: State of Mind Is All Important!

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

In whistleblowing cases, the employee’s state of mind is the decisive factor and that was certainly so in the case of a college lecturer who was dismissed after being accused of making groundless allegations against a colleague.

The lecturer faced criticism of her performance on the basis of student feedback and was said to have defended herself by accusing a colleague of giving his students advance notice of examination questions. The colleague was subsequently acquitted of malpractice and the lecturer was dismissed for gross misconduct on the basis that her allegations against him had been vexatious.

An Employment Tribunal (ET) subsequently found that it had not been the lecturer’s intention to get her colleague into trouble and that her remarks about him were made in good faith and with a view to vindicating her own position. However, in dismissing her whistleblowing claim, it found that she had no reasonable belief that he was undermining the integrity of the examination system.

Allowing her appeal against that ruling, the Employment Appeal Tribunal (EAT) found that the ET had failed to clearly address issues as to the reasonableness of the lecturer’s belief and whether the allegations she made were public interest disclosures within the meaning of the Employment Rights Act 1996.

The employer’s challenge to a finding of unfair dismissal in the lecturer’s favour was also allowed. The EAT found that the ET substituted its views for those of the college and had failed to apply the objective standard of the reasonable employer. In those circumstances, the remaining issues in the case were remitted to a freshly constituted ET for reconsideration.

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