Whistleblowing: a growing trend? 

At Birketts we are increasingly observing that a large number of employment tribunal claims include allegations of whistleblowing. In many cases, whistleblowing is either the central issue (particularly for employees with less than two years’ service) or a key component of the claim.  

This is particularly apparent in (but not limited to) industries such as healthcare, where it is often easy for employees to allege that their disclosure is in the public interest due to the nature of their work and the safeguarding obligations towards service users. Such industries also typically have a high turnover of staff, meaning that they do not accrue sufficient service to bring a claim for ‘ordinary’ unfair dismissal. Whistleblowing protections apply from day one of employment.  

Why it matters 

Unlike standard unfair dismissal claims, whistleblowing claims are not subject to a statutory cap on compensation, and if upheld, a whistleblowing-related dismissal is deemed to be ‘automatically’ unfair. This makes them particularly high-risk claims for employers, both financially and reputationally. 

Employees also do not need to show that there has been a failure (or what they allege is a failure) capable in law of amounting to one of the categories of wrongdoing, which often surprises employers. Employees only need to show that they had a ‘reasonable belief’ that the information they disclosed (which can be written or oral) falls under one of the defined categories of wrongdoing and that this disclosure is in the public interest.  

These claims are often highly complex and typically involve multiple individuals alleged to have received protected disclosures. This can significantly increase the time, cost and internal disruption required to manage the litigation process. 

It is also becoming more common for employees to raise whistleblowing allegations in response to disciplinary or misconduct discussions. In such cases, they may later assert that any subsequent action taken against them was retaliatory, leading to claims for unlawful detriment. 

Employment tribunals’ approach 

Employment tribunals are generally reluctant to strike out whistleblowing claims at an early stage unless there are clear jurisdictional issues, such as time limits or a complete lack of legal merit. As a result, these claims often proceed to full hearings, which can last a week or more, particularly where numerous witnesses are required to address each alleged disclosure. The significant backlog of cases currently in the employment tribunals means that these more complex claims are usually listed at least one year ahead, often significantly longer. 

We are also seeing a rise in the number of protected disclosures made over extended periods and made in direct response to disciplinary action or managerial criticism. Even where the disclosures are clearly made in response to legitimate actions by the employer, they still require a full defence to be submitted.  

Looking ahead 

Since the forthcoming Employment Rights Bill will remove the two-year minimum service requirement for bringing a claim of unfair dismissal, it is possible that we may see fewer whistleblowing claims and more ‘straightforward’ claims for unfair dismissal in the future. These are likely to be listed more quickly than the more complex claims involving discrimination and/or whistleblowing. 

In the meantime, employers should protect themselves against the risk of whistleblowing claims by taking the following steps: 

• developing and maintaining a clear and robust whistleblowing policy, which sets out the type of concerns that should be reported and the appropriate mechanisms for reporting them 

• making sure employees are all aware of the policy and understand how and when to use it, by providing regular updates and training 

• ensuring that managers are alert to the circumstances when a disclosure might be protected, and how to respond appropriately if they think an employee might be making one 

• keeping a proper paper trail of all disclosures, any investigations that are carried out and how the organisation has responded to the disclosure.