The claimant worked in a cinema and, like all staff, received free tickets, on the strict understanding that they were not for re-sale members of the public or at all. He noticed a colleague (Mr Ali) selling his free tickets in breach of the rules. He was offered a bribe, which he took and passed onto management, along with his allegations against his colleague.

Although there was a dispute at tribunal between the claimant and employer about whether or not he asked management not to pass his witness statement to the colleague, it was done, in line with the long-standing procedures in the workplace of giving statements to accused employees. The claimant was subsequently threatened and called a 'snitch' by colleagues. He resigned and emphasised his detrimental treatment as fundamentally behind his resignation.

The tribunal and the EAT drew a distinction between the treatment and the actions of the employer. They found that employer was not aware that any threats or detrimental treatment would be meted out to the claimant. Furthermore, the reason for giving Mr Ali the statement was not because the claimant had blown the whistle but because the employer wanted to comply with its own grievance and disciplinary procedures: "In my judgment there is nothing in that authority [Woodhouse v West North West Homes Leeds Ltd [2013] IRLR 773], nor in section 47B of the Act, that prohibits the drawing of a distinction between the making of protected disclosures and conduct by the Respondent that follows, which although related to those disclosures is separable from them. Of course care must be taken to ensure that an argument to that effect advanced by an employer is properly scrutinised, so that the legislation is not abused. But there is nothing, in my judgment, in principle to suggest that such a distinction cannot be drawn."

The EAT continued:

"... the Tribunal found as a fact that the reason why the Claimant’s identity was revealed when his witness statement was provided to Omar Ali was not the protected disclosure but the Respondent’s understanding, based on its longstanding policy set out in handbooks and practice, of providing those who are the subject of disciplinary action with the evidence on which reliance is placed and the finding, combined with that, that the Respondent was not aware of anything to indicate that the Claimant was concerned about his identity being revealed, had not been told of any threat, and had no reason to believe that Omar Ali would react in a threatening way. The Tribunal was plainly satisfied that this was an employer that genuinely acted for reasons other than the protected disclosure."

COMMENT: This case is very fact-sensitive and, whilst the NI whistleblowing legislation is currently as was before the 2013 changes in this GB case in relation to the protection of a whistleblower's identity and vicarious liability of the employer for treatment of the whistleblower by third parties, we would advise readers to treat it with some caution. Even after the NI position changes, as looks likely from Stormont discussions, it is very possible that an alternative tribunal could come to a different decision on similar facts. Or perhaps find no direct link against the employer but could hold it vicariously liable for the detriment cause by the colleagues. Legal advice should be sought when dealing with whistleblowing cases - it is a rapidly developing area of law.

http://www.bailii.org/uk/cases/UKEAT/2015/0394_14_1203.html