The recently reported claim brought by former Battersea Power Station Development Company (BPSDC) chief executive, Don O’Sullivan, provides a high-profile example of the legal risks associated with unfair dismissal and whistleblowing.
While the proceedings are ongoing and strongly contested, the case highlights key principles under the Employment Rights Act 1996 (ERA 1996), particularly in relation to automatic unfair dismissal and causation.
Written by Peggy Lim, Solicitor
The Allegations in Context
Mr O’Sullivan alleges that he was dismissed for “gross misconduct” after raising concerns about alleged financial misreporting, including the overvaluation of undeveloped land which he claims inflated the company’s balance sheet.
BPSDC denies the allegations, stating that independent forensic accountants found no issues and that the dismissal stemmed from concerns about his conduct and leadership.
This reflects a common feature of whistleblowing claims: the claimant alleges retaliation, while the employer relies on an alternative justification for dismissal.
Eligibility to Claim Unfair Dismissal
As a starting point, only an employee – defined under section 230 ERA 1996 as an individual working under a contract of employment – can bring a claim for unfair dismissal.
Ordinarily, employees must also have two years’ continuous service to pursue such a claim. However, there are important exceptions. In particular:
- Where dismissal is for an automatically unfair reason, the qualifying period does not apply.
- Whistleblowing is one such automatically unfair reason.
This is significant in cases such as Mr O’Sullivan’s, where length of service may otherwise be insufficient to find a standard unfair dismissal claim.
Whistleblowing and Automatic Unfair Dismissal
Section 103A ERA 1996 provides that an employee is automatically unfairly dismissed if the reason, or principal reason, for dismissal is that they have made a protected disclosure.
Where this applies:
- No minimum service requirement applies.
- The dismissal is deemed automatically unfair.
- Compensation is uncapped.
- The employee may seek interim relief, a powerful and relatively rare remedy which can result in continued pay pending the final hearing.
The Two Key Questions
In any whistleblowing dismissal claim, tribunals must determine:
- Was the disclosure the reason, or principal reason, for dismissal?
- Was the disclosure a protected disclosure?
If both questions are answered in the affirmative, the dismissal will be automatically unfair.
Causation: The Central Battleground
In practice, many whistleblowing claims fail on causation. The employee must show that the protected disclosure was the principal reason for dismissal, not merely part of the background. This is a higher threshold than in detriment claims, where the disclosure need only materially influence the treatment.
Tribunals will therefore examine:
- The sequence and timing of events, such as disclosure followed by suspension or dismissal.
- The knowledge of the decision-maker, including whether they were aware of the substance of the disclosure.
- The credibility of the employer’s stated reason.
- The overall decision-making process.
Even where disclosures are made to one individual and the dismissal decision is taken by another, there must be some awareness of the substance of the disclosure by the decision-maker.
Misconduct vs Disclosure: The Issue of Separability
A recurring issue in whistleblowing cases, and one highly relevant to the Battersea dispute, is whether alleged misconduct can properly be separated from the act of whistleblowing.
Employers often argue that dismissal was due to the manner in which concerns were raised or associated behaviour, rather than the disclosure itself. The courts have recognised that such distinctions can be valid, but only where they are genuine.
Key principles include:
- Conduct that is truly separable from the disclosure may constitute a fair reason for dismissal.
- However, tribunals will be alerted to attempts to disguise retaliation as misconduct.
- If the alleged misconduct is minor, exaggerated or closely bound up with the disclosure, it is less likely to be accepted as the real reason.
- Even where misconduct exists, tribunals may still find that the disclosure was the principal motivating factor.
Procedural Fairness and Pretext
Although whistleblowing claims focus heavily on causation, procedure remains highly relevant. A flawed disciplinary process, such as failure to put allegations to the employee, lack of investigation or inconsistency in treatment, may support an inference that the stated reason for dismissal is a pretext.
In high-value, senior-level disputes, documentation of decision-making becomes particularly critical.
Practical Takeaways for Employers
The Battersea case underscores several key risk areas:
- Whistleblowing concerns should be investigated independently and transparently.
- Decision-makers should be clearly identified and their reasoning documented.
- Employers must ensure that any alleged misconduct is genuinely separable from the disclosure.
- Care should be taken to avoid temporal proximity between disclosure and adverse action without clear justification.
Conclusion
Although the tribunal will ultimately determine the facts, this case reflects a familiar pattern in whistleblowing litigation: competing narratives of misconduct versus retaliation.
For claimants, the key challenge remains establishing that the disclosure was the principal reason for dismissal. For employers, the challenge is evidencing that it was not.
In either case, the statutory framework is clear: where whistleblowing is the true reason, the dismissal will be automatically unfair, with significant financial and reputational consequences.
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