Legal principle
An employer may, in a suitable case, distinguish the protected disclosure from the way the worker behaved when making or pursuing it. The distinction must be real: a tribunal cannot re-label ordinary features of the disclosure as separate misconduct to remove statutory protection.
What the court decided
The Court of Appeal upheld findings that the dismissal was because of the claimant's conduct and interpersonal approach rather than because she made the protected disclosure.
The practical test
- 1
Identify the protected disclosure and the conduct said to be separate from it.
- 2
Decide whether the conduct is genuinely distinct or merely the content or ordinary manner of disclosure.
- 3
Determine the principal reason for dismissal on the evidence.
How tribunals apply it
- The separability principle should be applied cautiously because whistleblowing may naturally cause upset or conflict.
- Unreasonable or abusive conduct can be distinct, depending on its nature and degree.
- Jhuti remains relevant where an ostensible conduct reason masks retaliation for disclosure.
Connected legislation
WorkDisputes tribunal data
Recent decisions involving related issues
These decisions are selected from topic classifications in our public Employment Tribunal dataset. A matching topic does not mean the decision applied this authority directly.
Discrimination and Whistleblowing
Employer: Greenlight Recruitment Ltd
The claimant succeeded in his whistleblowing detriment claim but failed in his disability discrimination claim; remedy for the successful claim is to be determined at a later hearing.
Legal Issues (4)
- Disability discrimination under sections 20 and 21 Equality Act 2010 – whether the respondent applied a provision
- criterion or practice (PCP) that placed the claimant at a substantial disadvantage
- whether the respondent had a duty to make reasonable adjustments as an employment service provider. Whistleblowing detriment under section 47B Employment Rights Act 1996 – whether the disclosure was a qualifying protected disclosure under section 43B (information tending to show a failure of health and safety protection, in the public interest)
- whether the disclosure was a material cause of the detrimental treatment (cessation of shifts and termination)
Reference: 6017871/2024
Discrimination, Whistleblowing and Breach of Contract
Employer: Sheffield City Council and Others
Wrongful dismissal claim struck out (lost); other claims remain ongoing, resulting in a split substantive outcome.
Legal Issues (4)
- Amendment of claim
- strike out and deposit orders for lack of reasonable prospects and non-compliance with orders
- time limits
- the test for unfair dismissal in whistleblowing cases
Reference: 1801462/2024
Discrimination and Whistleblowing
Employer: University of Kent
The tribunal partially struck out some whistleblowing and victimisation claims for non-compliance, while leaving other claims pending.
Legal Issues (3)
- Strike out for non-compliance with tribunal orders
- deposit order
- time limits
Reference: 6018012/2024
Whistleblowing
Employer: Sabrina Health Care Ltd
The claim was struck out because the claimant failed to attend the hearing and the tribunal could not proceed fairly in her absence.
Legal Issues (3)
- Application of Rule 47 of the Employment Tribunal Procedure Rules 2024 for non-attendance
- consideration of fairness and prejudice when a party fails to attend
- inability to determine the claim without evidence from the claimant
Reference: 6015639/2025
Discrimination and Whistleblowing
Employer: The Chief Constable of Gwent Police
The entire claim was dismissed because the whistleblowing claim lacked a discernible basis and the disability discrimination claims were out of time.
Legal Issues (2)
- Whether the claimant had a discernible claim of whistleblowing detriment/dismissal
- whether it was just and equitable to extend time for disability discrimination claims brought outside the statutory time limit
Reference: 6001777/2026
Discrimination, Whistleblowing and Harassment
Employer: Maximus UK Services Ltd and Ingeus UK Ltd
All claims were struck out, initially some for having no reasonable prospect of success and later the remaining claim for failure to comply with a tribunal order and not actively pursuing the case.
Legal Issues (4)
- Striking out under Rule 38 of the Employment Tribunal Procedure Rules 2024 for no reasonable prospect of success and for failure to comply with a tribunal order
- time limits for bringing discrimination claims
- requirements for sufficient particularisation of claims
- application of Cox v Adecco and Moustache v Chelsea and Westminster NHS Foundation Trust
Reference: 3306242/2024