Whistleblowing dismissal claim fails where performance was the real reason

This case shows that even when an employee makes a protected disclosure – a whistleblowing complaint – they can still be fairly dismissed if the employer's real reason is unrelated performance issues. The claimant, a high value packer with 1 year and 5 months' service, sent an email in April 2021 raising concerns about how a colleague's mental health was handled. The tribunal accepted this was a protected disclosure. However, the employer, Jewellery Quarter Bullion Limited, had already noted performance concerns: the claimant was late on several occasions and made two packing errors in May 2021, sending incorrect items to customers. After a verbal warning in June, she was dismissed in July for performance, skill set, and attitude.

What the tribunal decided

The tribunal had to decide whether the protected disclosure was the principal reason for dismissal. It found that it was not. The employer's evidence showed a clear focus on performance issues, and the tribunal accepted that the dismissal was for those reasons. The claimant, representing herself, could not prove that the disclosure motivated the decision. The claim was dismissed.

What could have been done differently

The employer followed a reasonable process: it gave a verbal warning and documented the performance issues. The claimant might have strengthened her case by showing a direct link between the disclosure and the dismissal, such as evidence of hostility or a sudden change in treatment after the email. Without that, the tribunal accepted the employer's account.

Why this matters

This case is a reminder that whistleblowing protection is not a shield against dismissal for other valid reasons. Employees should keep records of any performance discussions and any negative reactions to their disclosures. Employers should ensure they have clear, documented performance concerns before dismissing, and avoid any suggestion that the disclosure played a part in the decision.