EAT guidance on whistleblowing

Posted: 11th September 2013

Lorry2A lorry driver has failed to convince the Employment Appeal Tribunal (EAT) that it was protected disclosures, rather than his own conduct, that cost him his job.

The driver had worked for a national carrier for less than a year and was thus precluded from pursuing an ordinary unfair dismissal claim. He argued that he had lost his employment due to protected disclosures that he had made in relation to alleged breaches of working time regulations and that his dismissal was automatically unfair within the meaning of the Employment Rights Act 1996.

An Employment Tribunal (ET) accepted that he had indeed made protected disclosures but found that he had failed to discharge the burden of proving that they were the cause of his dismissal. Despite shortcomings in his employer’s internal disciplinary and appeal processes, the ET accepted that he had been dismissed on grounds of conduct and for no other reason.

Challenging that decision, the driver’s lawyers argued that the burden of proof had wrongly been reversed against him. However, the EAT decided that it was bound by a compelling and consistently followed line of authority to find that it was for the employee to establish that whistleblowing was a substantial cause of his dismissal. Dismissing the appeal, the EAT also rejected arguments that the ET had misunderstood the evidence and reached a perverse conclusion.