Successful whistleblowing claims can attract heavy compensation for employers to bear, and do not require the claimant to have a minimum period of service. Employees who have made a ‘protected disclosure’ regarding their employer’s malpractices are protected from dismissal and detriment (which is unfavourable treatment short of dismissal). As such, treating them badly or terminating their employment following such a disclosure claim could entitle aggrieved employees to bring a claim for automatically unfair dismissal or detriment related to their whistleblowing.
However, in order for this protection to apply, employees must demonstrate that they have made a ‘qualifying disclosure’. The meaning of ‘qualifying’ or ‘protected disclosure’ has evolved a lot recently and has been discussed in more detail in our previous blogs. In effect, the position is that the employees will be protected from detriment/ dismissal if they disclose information regarding certain failures and they had a reasonable belief that their disclosure was in the public interest. Both notions of what is in the public interest and what amounts to a disclosure have been subject to discussion in two recent cases.
What is in the public interest?
The disclosure of information made by the worker must satisfy the public interest test set out in s.43B of the Employment Rights Act, although unhelpfully the legislation does not define public interest. Surprisingly, case law shows that breaches of an employer’s obligation to a small group of employees can overlap with wider public interest, as shown by the case of Chesterton Global Ltd v Nurmohamed. Whilst this is a higher threshold than the position pre-2013 when issues that affected the legal obligations of a single employee making the disclosure could be protected (Parkins v Sodhexo Limited), employers should be aware that the threshold employees must meet to satisfy the public test requirement is still reasonably low.
The recent case of Morgan v Royal MENCAP Society goes even further. An employee who complained about cramped working conditions causing a risk to her health and safety argued that this amounted to a protected disclosure and that her dismissal (which she alleged was related to the disclosure) was therefore automatically unfair. Ms Morgan had raised concerns both verbally and in writing about her working conditions causing injury to her back and knee. The Employment Tribunal took the view that although this issue was of great importance to Ms Morgan, it was not in the public interest and she could not have reasonably believed that it was. As such the case was struck out at a Preliminary Hearing. Ms Morgan appealed to the Employment Appeal Tribunal (EAT).
Perhaps worryingly for employers, the EAT upheld Ms Morgan’s appeal. Although it acknowledged that other employees may not necessarily be affected, whether Ms Morgan reasonably believed her claim met the public interest requirement was the important factor and would depend on a factual analysis which did not take place. The EAT held that the Tribunal should not have dismissed the claim without listening to her evidence on this point. The EAT considered that Ms Morgan may have regarded her health and safety concerns to be in the wider interest of employees generally, despite the fact she was the main person affected. As such the case was remitted to the Employment Tribunal for consideration of this point.
What is meant by disclosure of information?
We know from previous case law that a qualifying disclosure must disclose information that is more than a mere allegation. However, once again the burden to be met by the employee is lower than one might expect. In the case of Kilraine v London Borough of Wandsworth, the claimant raised various complaints, including that her line manager failed to support her when she raised a safeguarding issue. Since she described the content of the meeting in her complaint, it was held that her complaint contained both an allegation and disclosed information and therefore could amount to a qualifying disclosure. The judge clearly highlighted that allegations and information are intertwined and the fact that a disclosure also contains an allegation is not fatal.
What are the consequences for employers?
The legal hurdles that claimants must overcome to argue whistleblowing claims are set reasonably low and no longer require that disclosures are made in good faith. The general intention seems to be that whistleblowers should be listened to even though they could be acting on mixed motives. Employers must therefore bear in mind that whistleblowing claims can be alleged relatively easily, and should ensure that retribution does not follow an employee’s complaint. On this basis it is imperative that where a protected disclosure has been made that any decision making process is carefully documented to show objective justification for any action taken against the employee and that it is not linked to the disclosure.
It is also important to note that protected disclosures can be made both orally and in writing, and unless employers have a whistleblowing policy in place setting out how and to whom disclosures should be made, it is possible that internal conversations or emails could amount to qualifying disclosures.
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