Many employers cannot say with confidence that they know when a member of staff has blown the whistle. The staff member does not have to label their disclosure as a ‘protected disclosure’ and the disclosure does not have to be made in a specific format or in accordance with an employer’s whistleblowing policy. It is for this reason that employers need to ensure that managers can identify when a protected disclosure has been made and act accordingly. Employers may otherwise find themselves defending a tribunal claim, if the individual can establish a link between any detrimental treatment and their disclosure.
For other employers, the problem is not spotting a protected disclosure but dealing with a staff member who repeatedly and in bad faith complains about everything and everyone.
Unlimited compensation risk and no qualifying service
Defending a whistleblowing claim can, in some cases, carry a high level of risk as there is no statutory cap on the level of compensation that can be awarded if a claimant is successful. A claimant can be compensated for the long term financial consequences of being subjected to detrimental treatment as a result of being a whistleblower. An injury to feelings award can also be made for detriment claims and employees who allege that their dismissal was caused by whistleblowing can apply to the tribunal for an order that they be re-employed on full pay pending the outcome of their claims.
Furthermore, there is no qualifying period of service required to bring a whistleblowing claim, which makes it an attractive option for those who are highly paid and/or have less than two years’ service.
Who is protected?
The Employment Rights Act 1996 (ERA) extends whistleblowing protection in respect of detrimental treatment to employees, workers and former workers as well as some other categories of staff such as police officers, doctors and dentists and certain other NHS staff. In addition, the dismissal of an employee where it is found that the reason (or principal reason) for their dismissal is that they have made a protected disclosure will be automatically unfair.
In a nutshell – the legal test for whistleblowing protection:
- The employee or worker has made a qualifying disclosure of information about a relevant failure (see more below);
- the disclosure is protected because it has been made to a person covered by the legislation (which includes the employer);
- the employee or worker reasonably believes that the information is true (even if it proves not to be – a mistaken belief in a disclosed malpractice is sufficient);
- the disclosure is in the public interest (a low threshold, meaning more than purely self-interest); and
- it is the reason or principal reason for the detrimental treatment or dismissal of the worker/employee.
What is a ‘qualifying disclosure’?
A ‘qualifying disclosure’ is any disclosure of information that relates to a ‘relevant failure’, which includes the following categories of information:
- criminal offences;
- miscarriages of justice;
- danger to the health and safety of any individual;
- damage to the environment;
- breach of any legal obligation;
- the deliberate concealing of any of the above.
Breach of a legal obligation is a wide category and can include any contractual, statutory or other obligation. The alleged wrongdoing can be past, present or prospective and may concern another employee, the employer or a third party.
Qualifying disclosures can be difficult to spot because information relating to a ‘relevant failure’ will be often intertwined with allegations and counter-allegations made during a grievance or disciplinary investigation or hearing.
What amounts to detrimental treatment?
Detriment is not defined in legislation but simply means that an employee or worker has been disadvantaged. The worker could be disadvantaged because they have been denied training or a promotion, subjected to disciplinary action or indeed dismissed.
The need to prove causation
Of course, even if there has been a protected disclosure and the employee or worker has been subjected to adverse treatment, it does not necessarily mean that the whistleblowing protection applies. The whistleblowing must be shown to have caused (or at least be the principal cause of) the detrimental treatment or dismissal. This is often a key area of contention in any tribunal claim and the burden is on the employer to show that whistleblowing was not the reason for the treatment.
In the recent case of Royal Mail Ltd v Jhuti  EWCA Civ 1632 the Court of Appeal established that an employment tribunal must look at what the person who took the decision to dismiss knew at the time they made the decision. The claimant in this case had made a protected disclosure but the dismissing officer was unaware of this. As a result, the court held that the claimant was not dismissed because she had blown the whistle. However, employers need to be aware that the position may be different if someone at the top of the hierarchy had deliberately manipulated the dismissal decision.
What about when the employer wants to dismiss, not because of the fact that the employee has complained but the manner of such complaining? In Panayiotou v Kernaghan  IRLR 500, the Employment Appeal Tribunal upheld the first instance decision that the actions of the complainant police officer subsequent to making protected disclosures were sufficient to have exhausted the patience of any organisation and that he had become completely unmanageable. The tribunal had drawn a legitimate distinction between the fact of making the protected disclosures and other features of the situation regarded as severable. Contrast this case with the facts in El-Megrisi v Azand University UKEAT/0448/08 where a dismissal for being a “nuisance” due to the cumulative effect of making a number of disclosures was held to be unlawful.
No need for good faith!
A problem for many employers is that there no longer needs to be an element of good faith on the part of the employee or worker in making the disclosure. It can be made in vexatious pursuit of their own agenda and this can be very difficult for an employer to deal with in practice.
Any compensation may be reduced by 25% in the event that a tribunal finds there was bad faith on the part of the employee. But this may be cold comfort – also remember that failure to follow the Acas Code in any related grievance or dismissal process can lead to an uplift of up to 25% in compensation and there is still a risk of aggravated or exemplary damages being awarded.
Defending whistleblowing claims
Proving that a protected disclosure has been made, is, in our experience often relatively straightforward. It is usually the reason for dismissal or other treatment which is the focus in any claim. Employers need to be able to point to and evidence a clear and credible lawful reason for dismissing. Timing is also an important indicator of the trigger for any action taken by the employer.
How can employers minimise the risk of a whistleblowing claim?
Create a safe environment for staff to raise concerns and implement a whistleblowing policy
Employers should create an environment where employees feel empowered to make disclosures. This includes having a whistleblowing policy and promoting a culture that positively supports disclosures of wrongdoing and reassures staff that appropriate action will be taken. Set out the procedure employees need to follow when raising concerns and tell them how it will be dealt with and by whom. This could include a designated whistleblowing officer, a specific format/forum to raise such concerns or a whistleblowing hotline ( for large organisations). Consider appointing an external investigator to deal with significant matters arising.
Anonymous disclosures shouldn’t be ignored and should be investigated and acted upon so far as is reasonable and appropriate.
Communicate with the whistleblower
Where possible, employers should endeavour to keep a whistleblower regularly updated. Whistleblowers can become increasingly disgruntled when they feel they are not part of the process or perceive that no action is being taken.
Train staff on how to use your whistleblowing policy and managers to identify protected disclosures
The ability to identify a protected disclosure is key to responding appropriately. If staff use the proper channels when blowing the whistle it will make it easier for managers/whistleblowing officers to identify and deal with it accordingly.
This article is taken from our summer 2018 edition of HR Matters. For further information regarding whistleblowing procedures, please contact Jeanette Wheeler or a member of our employment team. Law covered as at May 2018.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2018.