The law in relation to “whistleblowing” in the UK was introduced by the Government in 1998 to protect genuine whistleblowers in the workplace and thereby encourage a culture of openness and good governance. In practice many threatened “whistleblowing” claims tend to be more about an individual seeking to maximise their own financial position in a dispute with their employer, and this has led to some spurious Tribunal claims.
We blogged on recent changes to the law on whistleblowing here.
However, appeal Courts still appear keen on deciding such cases on their merits by getting to the bottom of the reason why the employer has subjected an individual to a detriment, rather than disqualifying such claims at the outset based on technicalities. Two recent cases illustrate this.
The case of Norbrook Laboratories (UK) Ltd v Shaw, has broadened the scope of what could amount to a protected disclosure. In this case the EAT found that multiple communications to an employer, in separate emails to different managers, was still capable of amounting to a single qualifying disclosure, despite the subject matter being spread across several days.
The Claimant sent numerous separate emails to various managers within the company, expressing his concerns about the hazards of staff driving in snowy conditions. The EAT found that the emails went further than merely expressing an opinion, and conveyed information to the employer about the hazards faced by its employees (thus endangering their health and safety). In this case, the EAT noted that if taken separately, none of the emails would have amounted to a protected disclosure, however taken together, it was clear that the recipients of the emails would have been aware of the previous communications and that they were sufficiently “embedded” within one another to amount to a single protected disclosure.
As a result of the Norbrook case employers should ensure that managers are aware of what could amount to a whistleblowing disclosure and that they communicate with each other to keep track of concerns expressed by workers.
In Onyango v Berkeley (t/a Berkeley Solicitors) the EAT held that a disclosure made after employment has terminated can still be a protected disclosure.
It is clear from case law that a detriment occurring after termination of employment, in respect of a protected disclosure made during employment, can lead to a claim. However this case dealt with the question of whether a disclosure made after employment ends can be a protected disclosure. The EAT had “no hesitation” in accepting that such a disclosure could be protected as the EAT could see no reason to limit the disclosure to the duration of the employment.
These cases show the continued willingness of the Courts and Tribunals to interpret the law on whistleblowing in a way that ensures protection for whistle-blowers where possible.
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