In Shinwari v Vue Entertainment, Shinwari (S) blew the whistle on a colleague, Ali (A), who was selling complimentary staff cinema tickets to the general public in clear breach of the employer’s policy. A became aware that he had been seen selling the tickets and offered S a £5 bribe to keep silent. S took the money but only as evidence to hand to managers and not as a bribe. When reporting the matter, S formed the view that his name would be not be revealed. S’ witness statement was disclosed to A in the disciplinary proceedings that followed. S was then threatened by A, he was called a snitch by other colleagues and as a result was transferred by agreement to a different cinema. S resigned and claimed constructive dismissal and suffering a detriment for whistleblowing.

An ET rejected S’ claim. There was no doubt that S had made a protected disclosure but on the facts he had not been constructively dismissed or subjected to a detriment because of whistleblowing. The harassment he had suffered was a consequence of his witness statement being disclosed, not on the ground of whistleblowing itself. The EAT agreed with the tribunal. The reason why S’ identity was revealed was not the protected disclosure but the employer’s policy of providing those who are the subject of disciplinary action with the evidence against them. Furthermore, there was nothing to alert the employer to any adverse reaction or threats by A, or by other colleagues.  As a matter of law or fact, a tribunal is entitled to draw a distinction between the fact of making a protected disclosure and the consequences that follow.

Note that this case was brought before amendments were made to whistleblowing legislation on 25 June 2013 which makes an employer vicariously liable for any detriment suffered by a whistleblower at the hands of his or her colleagues, with or without the employer’s knowledge or approval, on the ground that he or she has made a protected disclosure. However, liability can be escaped by showing that reasonable steps were taken to prevent any detriment occurring. So, if this case was brought today, then on the same facts, the employer would still escape liability for detriment just for revealing the whistleblowers name, as that would not be on the ground of making a protected disclosure, but may well be found vicariously liable for detriment in the form of threats and harassment doled out by colleagues, unless it can be shown that steps were taken to prevent any disadvantage happening. 

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.