It seems this case hasn’t yet hit the journalists’ newswires. It’s a very recent legal development we believe you should know about.

First, to set the scene, we need to put ourselves in the position of a rather unlucky employee. Some four weeks into her employment at Royal Mail, she witnessed actions by her line manager that were contrary to Royal Mail’s policies and to Ofcom’s regulatory requirements.

She alerted the team leader, Mr Widmer, but following a four-hour meeting that left her shaking and in tears, Mr Widmer suggested she send an apologetic email to him admitting she had made a mistake. She did as instructed.

Following this, she claimed to have been bullied and harassed, given impossible, perhaps unlawful, demands and was subsequently put on a ‘performance management’ plan; in other words, the suggestion was that she was performing badly in her job and was at risk of dismissal.

The employee complained to HR about her treatment. However, her complaint was never investigated properly and Mr Widmer selected the evidence presented to the person appointed to review the employee’s performance (the “reviewer”). That reviewer did not see the full account of the wrongful actions on which the employee had blown the whistle, but she did see the employee’s apologetic email accepting her error. Based on that evidence, she made the decision to dismiss the employee for poor performance.

The employee brought a grievance, appealed against her dismissal and brought a claim at an employment tribunal, claiming that she was dismissed not for poor performance but because she had made “protected disclosures”, i.e. had blown the whistle on wrongdoing in her team. The tribunal’s decision was appealed to the Employment Appeal Tribunal (EAT).

The law is complex, technical and not entirely intuitive. The reasoning was specific to whistleblowing legislation and the EAT specifically criticised the employment tribunal for applying discrimination law principles. The important point is that the only relevant detriment was the dismissal itself – not Mr Widmer’s earlier behaviour, even if in a sense it caused the dismissal.

Normally, only the beliefs and motives of the decision maker are relevant. But the reviewer apparently did not know about the whistleblowing – that was the finding of the employment tribunal: they concluded that on the basis of the information presented to her, the reviewer’s decision was inevitable.

Ultimately, the questions for the tribunal were: could the beliefs of Mr Widmer, manipulating the situation, be attributed to Royal Mail? and so could Royal Mail be said to have dismissed because of the whistleblowing?

The Employment Appeal Tribunal concluded that if an employer’s decision is manipulated in this manner, then the actions of that manipulator can be attributed to the employer.

Legal protection for whistle blowers has developed to protect moral individuals and also to protect businesses whose employees may be engaging in harmful conduct that might otherwise take far longer to be spotted and stopped.

Evidently the appeal tribunal felt this whistle blowing employee was a person of integrity who worked hard despite an oppressive environment. She will not be unique. With a robust whistleblowing policy, this unfortunate scenario may have been avoidable. A good policy will cover what both employees and employers should do in a whistle blowing situation. In addition, a designated investigator (in any situation) should hear both sides of the story and ensure that he or she has seen all the relevant evidence supporting the arguments made.

How robust is your whistle-blowing policy? elXtr has numerous useful tools, guides and policies and we have helpful (easy to read and create) materials on just this situation that you can tailor to suit you. We tend to advise that you make this policy part of your employee handbook – there’s a great one of these on elXtr too. To access these materials, take a look here. If you’re not already a member of elXtr but you’re interested in joining our community, give us a call on 0345 351 0025 and we can talk you through your options.

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