Home / Nicol v (1) World Travel and Tourism Council, (2) Gloria Guevara & (3) Emilio Gracia [2024]
29th April 2024
By Associate, Claire Treacy.
For a whistleblowing claim to be successful, the decision maker must have sufficient knowledge of the protected disclosure.
Mr Nicol was employed as the Vice President of Communications and PR by the World Travel and Tourism Council (WTTC). He made several protected disclosures in August 2019, i.e. disclosures related to a failure, wrongdoing or malpractice, to the company’s HR Consultants about Ms Guevara, the President and CEO of WTTC. In October 2019 Mr Nicol’s employment was terminated, purportedly for redundancy.
Mr Nicol brought a claim before an Employment Tribunal for automatic unfair dismissal and detriment on the basis that he made protected disclosures and was dismissed as a result. These claims were dismissed by the Employment Tribunal. They decided that whilst the email from Mr Nicol could have been considered a protected disclosure, it was not communicated to Ms Guevara in sufficient detail before he was dismissed. Therefore, any protected disclosures could have had no bearing on his dismissal.
Mr Nicol appealed the decision on the basis that the content of the disclosure was not relevant, all that mattered was that he had made a protected disclosure to the relevant HR Consultant. The Employment Appeal Tribunal (EAT) upheld the Employment Tribunal’s original decision on the basis that that Mr Nicol’s email had not been seen by Ms Guevara. This meant that the protected disclosures could not have played any material part in Ms Guevara’s decision to dismiss him. The EAT highlighted that Ms Guevara emailed the board members of WTTC before the redundancy, accurately representing her reasons for terminating Mr Nicol’s employment and her reasons did not include any of the disclosures Mr Nicol had made.
Mr Nicol’s argument to the EAT was essentially that the content of the disclosure was irrelevant to the decision-maker, especially as it was accepted that Ms Guevara did not know that he had made disclosures. His position was that the only question was whether a protected disclosure had been made. If so, then he ought to be protected. The EAT has now clarified that for there to be any liability, an employer must have some knowledge of what the worker is complaining or expressing concerns about.
The ruling is consistent with the Supreme Court judgment in Jhuti v Royal Mail Group Limited, which held that employers cannot rely on ignorance to avoid a whistleblowing claim (you can read about that case here and the surge in whistleblowing claims here). Whereas in Jhuti the manager responsible for the dismissal was deliberately not informed of the protected disclosure, in this case, there was no malign intent to keep the disclosures secret.
Employers can protect themselves from successful whistleblowing claims by ensuring that they have in place up to date whistleblowing policies and procedures and that these are clearly communicated to all employees. We would also recommend that managers and the HR team are fully trained in dealing with protected disclosures. Please get in touch with a member of the team for more information.