Whistleblowing is arguably the fastest growing yet most complex area of employment law.
Employment Tribunals have seen a surge of whistleblowing claims over recent years due largely to press reports of whistleblowers who have received significant pay outs after lifting the lid on serious irregularities in sectors spanning from finance, healthcare to education. Some leading barristers anticipate that whistleblowing will continue to be claim of choice, stating it is the “must have” accessory to any dismissal case in the tribunal. This observation is fast becoming a reality amid growing health and safety concerns and the debate about vaccines in connection with the Coronavirus pandemic.
It is unlawful to dismiss or subject a person to a detriment because a person has blown the whistle on wrongdoing which they believe is in the public interest. Key to the appeal of these claims is that no qualifying period of service is required and compensation for unfair dismissal is potentially unlimited. Whistleblowing protection extends to agency and home workers, self-employed doctors/consultants and others working for the NHS, and has more recently protected Judges and private doctors.
Automatically unfair dismissal
Dismissing an employee who has blown the whistle is automatically unfair if the reason or principal reason for the dismissal is that they have made a protected disclosure. A major hurdle for employees is demonstrating that the cause of the dismissal was because they had made a protected disclosure. It is a narrow test compared to establishing a whistleblowing detriment.
It is unlawful to subject a worker to a detriment on the ground that they have made a protected disclosure. Detriments can be wide ranging and often include acts like: demotion, undermining a person in their role, refusing to pay a bonus, and disciplinary action. A detriment claim can be pursued against a co-worker directly; there is the potential to claim significant compensation flowing from dismissal against a co-worker who caused their dismissal.
The information disclosed must, in the worker’s reasonable belief, tend to show that one of the following has occurred or is likely to occur:
- a criminal offence
- breach of a legal obligation
- a miscarriage of justice
- danger to the health and safety of any individual
- damage to the environment
- the deliberate concealment of information about any of the above categories
A disclosure should be in the claimant’s reasonable opinion in the “public interest” . “Public interest” is not defined, but the following considerations are relevant including the number of people affected by the disclosure and the nature and extent of those interests which are affected.
Employers should not rely on confidential information clauses in employment contracts to prevent an worker from making a disclosure externally. These are void insofar as they seek to prevent a protected disclosure. Seeking to enforce them could amount to an unlawful detriment against the worker.
Our expert team has been instructed in a number of complex whistleblowing court cases and is able to cut through the dense law to provide practical and strategic advice to both employers and employees involved in these types of cases. At the same time, we are familiar with employment tribunal tactics deployed by both sides to defeat the other.
Our experience and in depth knowledge of this area is invaluable for employers seeking to identify whistleblowing disclosures in the work place – whether in emails, conversations or as part of a grievance of a disciplinary hearing. And it also provides the foundation for practical policies to minimise risks of whistleblowing claims at work, but to also encourage workers to raise legitimate concerns about practices or conduct.
For further information, please contact Helen Murphie.