Protected disclosure claim struck out: disclosure made after dismissal cannot save unfair dismissal case

When a whistleblowing claim fails because the disclosure came too late

This case shows a fundamental rule of protected disclosure claims: the disclosure must happen before the dismissal. A locum lawyer engaged by Hogan Lovells International LLP was dismissed in August 2020. He later claimed that comments he made in November 2020 – three months after his engagement ended – were protected disclosures that made his dismissal automatically unfair. The tribunal had no hesitation in striking out the claim.

The claimant had also brought an ordinary unfair dismissal claim, but that was dismissed at an early stage because he did not have the required two years' continuous service. The remaining claims for automatic unfair dismissal and detriment relied entirely on the November 2020 communications. As the tribunal noted, there can be no causal link between a disclosure made after dismissal and the dismissal itself.

What the losing side could have done differently

The claimant represented himself and made several errors that proved costly. He submitted a 78-page statement of case containing irrelevant material and personal attacks on a partner at the firm. He also pursued a claim that had no reasonable prospect of success, given the clear timing issue. The tribunal found his conduct unreasonable and ordered him to pay £8,000 in costs – a significant sum for an individual litigant.

If the claimant had taken legal advice early on, he would likely have been told that a post-dismissal disclosure cannot form the basis of an automatic unfair dismissal claim. He might also have avoided the costs orders by focusing his submissions on arguable points rather than personal grievances.

Why this matters for similar claims

The decision reinforces a key procedural point: the timing of a protected disclosure is critical. Even if an employee genuinely believes they have uncovered wrongdoing, they must make the disclosure before any dismissal takes effect. A disclosure made weeks or months later cannot be used to argue that the dismissal was because of whistleblowing.

The case also serves as a warning about the risks of litigating in person without understanding the basic legal requirements. Employment tribunals have broad powers to strike out weak claims and award costs against parties who behave unreasonably. Anyone considering a whistleblowing claim should check the timing of their disclosure and seek advice if there is any doubt.