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Pay Attention to Whistleblowing

Usually employees cannot lodge a claim for unfair dismissal until they have been with their employer for a qualifying period of two years. In cases where there is a "protected disclosure"though (whistleblowing) employees can claim for automatic unfair dismissal as soon as they need to.

In the case of Chemistree v Gahir, the Employment Appeal Tribunal had to consider whether or not the claimant (employee) had suffered detriment due to the respondent’s (employer) alleged failure to act upon the disclosures immediately and whether or not the tribunal should have considered each disclosure separately as opposed to them all being rolled up together.

Ms Gahir, was an employee of Chemistree. Her role involved making sure that the pharmacy was compliant with statutory requirements and guidance. Her start date was 16th August 2010, and she was dismissed 18 days later on 3rd September 2010. It was claimed that Ms Gahir was dismissed on the grounds of ‘mutual unsuitability.’ In these 18 days, Ms Gahir raised 17 separate concerns via two emails relating to health and safety and failure to comply with legal obligations. These included statutory and regulatory requirements linked to the storage and dispensing of controlled medicines. These were later claimed to be protected disclosures (whistleblowing).

At Employment Tribunal, the tribunal held that the ‘principal,’ reason for Ms Gahir’s dismissal was that she had made a protected disclosure; it also held that Ms Gahir had suffered detriment as Chemistree had failed to quickly or adequately address her concerns. T

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Chemistree appealed to the EAT who concluded that Ms Gahir had not suffered detriment. The EAT upheld the claim for unfair dismissal but they found it difficult to see how she could have suffered such detriment between her dismissal and submission of her emails of complaint as she had been employed for such a short period of time. 

The EAT found that there had been no deliberate action or failure to act on behalf of the respondent AND concluded that the tribunal should originally have considered each disclosure separately and in detail taking a ‘systematic approach.’

There is no qualifying period of employment required to bring a claim of automatic unfair dismissal for whistleblowing ; it is recommended however that employers should investigate promptly and thoroughly as well as take specialist advice where concerns are raised regarding health and safety or legal obligations.