02 February 2018
In the case of Malik v Cenkos Securities Plc, the Employment Appeal Tribunal (“EAT”) found that for there to be a causal link between a protected disclosure and detrimental treatment, the individual accused of the detrimental treatment must be personally motivated by the disclosure.
In this case, concerns were raised that the Claimant (who had made protected disclosures) failed to disclose possible conflicts of interest. The Head of Compliance for the Respondent authorised an investigation into this and subsequently suspended the Claimant. In response, the Claimant resigned and claimed constructive dismissal, automatic unfair dismissal and detriment. The Claimant argued there was a conspiracy to oust him from the company due to his protected disclosures.
At first instance, the Claimant lost on all grounds and the Tribunal found that the decision of the Head of Compliance was not linked to the disclosures. The Claimant appealed arguing that this was a “chain of command” situation whereby the person accused of the detriment may not have knowledge of the disclosures but his actions were motivated by someone further down the chain who was motivated by the disclosures.
The EAT dismissed the appeal and held that personal knowledge of the disclosure and personal motivation were required in a detriment case. They found that the Head of Compliance had made the decision alone, he had not been influenced by anyone else and he did not make his decision because of the protected disclosures.
This decision further highlights the importance of keeping written records of a decision-making process in such situations as well as ensuring that management understand the concept of personal liability in whistleblowing detriment claims.