Whistleblowing Detriment Cases: The Correct Approach

Thanks to Will Young of Outer Temple Chambers for preparing this case summary

The EAT has given guidance on how whistleblowing detriment cases should be approached in Chemsitree v Gahir.

The case concerned a Claimant who was employed as a pharmacist but was dismissed after 18 days after raising health and safety concerns and alleging failures to comply with legal obligations. She was found to have been subjected to detriment and to have ben unfairly dismissed.

The EAT overturned the decision on detriment but upheld the finding of unfair dismissal, in the process giving guidance as to the approach to be followed in such cases:

1. Each disclosure should be separately identified;

2. Each alleged failure to comply with a legal obligation or health and safety breach should be separately identified;

3. The basis upon which each disclosure is said to be protected and qualified should be addressed;

4. Save in obvious cases any legal obligation relied upon should be identified and capable of verification;

5. The Tribunal should then determine whether the Claimant had the required reasonable belief, and whether each disclosure was made in good faith, under the old law, or in the public interest, under the new law;

6. Where detriment is alleged, the Tribunal should identify the detriment in question and the date of the act or failure to act relied upon.