Winckworth Sherwood

UK 200 2013 position: 94

Causation in whistleblowing

In Anastasiou v Western Union Payment Services, the Employment Appeal Tribunal (EAT) determined whether the person who subjected the claimant to a detriment has to have knowledge of the protected act for a whistleblowing claim to succeed.

By law, in order to have a successful whistleblowing claim, an employee must first demonstrate that he or she made a qualified protected disclosure. In order for the disclosure to qualify as a protected disclosure, there are a number of qualifying factors. For example, it must involve the disclosure of factual ‘information’ to an employer. Merely gathering evidence or threatening to make a disclosure is not sufficient; in addition, this disclosure of information must be more than the employee simply expressing a personal opinion. Once a qualified protected disclosure has been established, the employee must then show that the protected disclosure was the reason for the detriment or dismissal. The difficulty in proving this second part of this test (i.e. the element of causation) is often the reason that whistleblowing claims fail…

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