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Oi Ref!: Whistleblowing - How to spot the red card
The recent BP oil-spill disaster has shone the spotlight on whistleblowing as disaster prevention, however the recent trends of Tribunals’ decisions on this issue have somewhat stretched the ambit of the legislation. The general recent trend in the case law in the Tribunals has been to seek ways of providing protection under the legislation rather than to restrict its application – which is generally bad news for employers.
Whistleblowing claims are attractive to Claimants as there is no requirement for minimum service, the compensation is uncapped and injury to feelings awards can be made. In addition in what might be viewed as the more traditional cases of whistleblowing with a public interest focus there is the added threat of significant adverse publicity and the likelihood of high legal costs if defended to trial and therefore the vast majority of those claims settle before trial, often for significant sums. The recent addition of the tickbox on the form for all Tribunal claims including whistleblowing allegations asking for consent to send the details to the relevant regulator ‘ups the stakes’ during the pre-claim negotiations as it increases the risk of external investigation, but means that there is little leverage once the claim has been issued. It is therefore well worthwhile being aware of the potential for such claims and how they can arise in order to be able to spot them, avoid them, defend them properly or settle them where commercial to do so.
Recap: Basic requirements for a whistleblowing claim
By way of a recap, the basic requirements for a successful whistleblowing claim are:
- that a worker;
- makes a disclosure to an employer, a third party, a legal adviser, and certain other third parties;
- to the effect that there has been or is likely to take place: 1) a criminal offence; 2) a breach of a legal obligation; 3) a miscarriage of justice; 4) danger to the health and safety of any individual; 5) damage to the environment; or 6) the deliberate concealing of information about any of aforementioned;
- the worker has a reasonable belief that the disclosure tends to show that there has been or is likely to be a breach in one of the six categories; and
- as a result of making the disclosure the individual has been dismissed or subject to other detriment.
Who can make the disclosure?
The definition of worker under the whistleblowing legislation is broader than in other contexts, and includes individuals who work under an express or implied contract to personally provide services so long as they are not genuinely in business on their own account and will therefore include agency workers and certain consultants.
In a recent case against BP the Tribunal held that the whistleblowing legislation did protect a Claimant whose consultancy was terminated by BP, even though the Claimant had made his protected disclosure to his previous employer, on the basis that BP’s actions were caused by the Claimant’s protected disclosure.
Taking a closer look at the disclosure…
Since the case of Parkins v Sodexho in 2002 it has been held that there is no requirement that the disclosure relates to a matter of public interest and that the disclosure can be a complaint about a breach of the employee’s own employment contract. This drastically broadened the use of the whistleblowing claim, extending it to apply potentially to grievances brought by employees about an employer’s behaviour or changes in terms and conditions.
There is no requirement for the disclosure to be in writing, although clearly oral disclosures involve an extra evidential hurdle to show that there was a disclosure and it met the requirements. The worker need not make the disclosure either, a solicitor can do it on their behalf.
The disclosure must convey facts, they need not be new facts, but must be more than merely allegations or opinions. Therefore as a recent case held, stating “your proposal is disgusting” is not a protected disclosure. Unthreading the allegations from the communication of facts can be a complex process.
The disclosure must be made in good faith. The burden of proof will be on the employer to show that the disclosure was not made in good faith. A Claimant will not be acting in good faith where they were not acting with honest motives. That is not to say that there must be truth in the disclosure (as reasonable belief will suffice) but where the Claimant’s predominant motive is not towards remedying the wrongs which the Claimant has identified in the disclosure, but is for an ulterior motive, such as malice, to put pressure on the employer not to dismiss or for personal gain, they are unlikely to have acted in good faith.
Detriment is not defined in the legislation, and a broad interpretation has been adopted in the case law, showing that it need not be financial or even significant, although these factors clearly go to the compensation that is likely to be awarded. Further, detriments after employment has ended, such refusing to provide a reference fall within the protection.
Having met the other requirements the Claimant will still have to show that the detriment was a result of their protected disclosure. This is where a good paper-trail can prove invaluable where it evidences some other reason for the detriment.
Many employers are not aware that interim relief is potentially available for Claimant’s claiming unfair dismissal under a whistleblowing claim. If an application is successful the Tribunal will order: reinstatement or re-engagement to a different job pending the full hearing; or where these are refused, continuation of the contract, meaning that the employee’s salary and benefits continue without the employee needing to do any work until the full hearing. With the current delays in listing Tribunal hearings, this could be a significant cost.
Interim relief must be sought within 7 days of the effective date of termination and a mini hearing will be held as soon as reasonably practicable which may be days after the ET1 has been submitted, leaving little time to prepare. The test applied by the Tribunal is whether “it appears…that it is likely that on determining the complaint the Tribunal will find that the reason (or…the principle reason) for … dismissal is” the protected disclosure.
Applications for relief can be used as a tactic to get evidence in front of the judge early on and there is no requirement to repay interim relief even in the event that the Claimant is not successful at the full hearing.