Sarah King Employment Solicitor Northampton

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Whistleblowing to prescribed people

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whistleblowing casesWhistleblowers have protection from dismissal and detriments if they blow the whistle to their employer.  In addition, workers can blow the whistle to a prescribed person in order to get protection although the hoops the worker must go through to claim the protection are harder for those that blow the whistle in this way.

This February, the Government has revised the list of prescribed people to whom the whistle can be blown and this has been updated.  You can read the full list here but this includes Offcom, the Bank of England, the Charities Commission and the Children’s commissioner.

Disclosure in the public interest

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whistleblowing casesA requirement was added for whistleblowers that the disclosure be made in the public interest.  This was added to prevent Claimant’s relying on complaints concerning their own contracts. The question remained however as to how wide the public interest requirement was.

The EAT held in Chestertons v Nurmohamed that the Claimant can have a reasonable belief is in the public interest if it relates to a contractual dispute affecting a group of staff.  The EAT held that an individual contractual dispute would not normally satisfy the public interest following the amendments made in the Enterprise and Regulatory Reform Act 2013 but that a disclosure concerning a relatively small group may satisfy the test, each case would turn on its own facts.

In this case the facts were that the Claimant was a director in the Mayfair office of Chestertons’ estate agency who said that he made a protected disclosure by complaining that the agency was overstating costs for its London office which drove down his bonus and that for 100 other senior managers.  The employment tribunal found that the disclosure was made with a reasonable belief that it was ‘in the public interest’, and the Employment Appeal Tribunal upheld the decision.

Whistleblowing consultation

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whistleblowing casesSome years ago an amendment was made to the ET1 form whereby you could ask the Tribunal to refer on the claim if it involved a claim relating to whistleblowing to the appropriate regulator.  There was much debate in practice as to whether tactically it was advisable to tick that box or not.

I have since been asked by clients what happens if I tick that box and my answer is of course well the Tribunal would pass the matter on.  What happens then is the next question.  Well up until now that has depended on the regulator and in my experience the answer has been not a lot that we were aware of.  Well at least not to our knowledge, as we have not been told that an investigation is under way etc.

The Government has commenced consultation asking exactly how regulators should be obliged to report on any disclosures they receive.  They have declined to make substantial changes to the existing Public Interest Disclosure Act but is proposing to make the regulators report annually on such disclosures. The consultation ends on 30th September 2014 and covers the areas where the regulator will be required to report.  The annual reports  would be general reports covering numbers of disclosures made and number that were investigated, resolved, referred on etc but would not cover the identity of the employee or the employer to whom the disclosure relates.

Anonymity makes sense to avoid discouraging those from whistleblowing and it is hoped that the report will ensure a more consistent approach across the regulators and that employees are more likely to feel that their concerns are being taken seriously.  Over time however, it will also be important for the regulator to investigate and take action to win the public’s confidence when the reports are published annually.

You can have your say on the consultation here.

Whistleblowing cases

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whistleblowing casesThe EAT in the recent decision of Blackbay Ventures Ltd t/a Chemistree v Gahir set out an approach that Employment Tribunals should take when considering protected disclosure cases, which may also assist those representing clients in such cases or those bringing such cases.

The EAT identified a number of steps that may be taken by the Tribunal, which can be adapted to present a more watertight case, as follows:

a. Each disclosure should be separately identified by reference to date and content.

b. Each alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered as the case may be should be separately identified.

c. The basis upon which each disclosure is said to be protected and qualifying should be addressed.

d. Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation. It is not sufficient as here for the Employment Tribunal to simply lump together a number of complaints.  ,

e. The Employment Tribunal should then determine whether or not the Claimant had the reasonable belief referred to in S43 B1 of ERA 1996 under the ‘old law’ whether each disclosure was made in good faith; and under the ‘new’ law introduced by S17 Enterprise and Regulatory Reform Act 2013 (ERRA), whether it was made in the public interest.

f. Where it is alleged that the Claimant has suffered a detriment, short of dismissal it is necessary to identify the detriment in question and where relevant the date of the act or deliberate failure to act relied upon by the Claimant. This is particularly important in the case of deliberate failures to act because unless the date of a deliberate failure to act can be ascertained by direct evidence the failure of the Respondent to act is deemed to take place when the period expired within which he might reasonably have been expected to do the failed act.

g. The Employment Tribunal under the ‘old law’ should then determine whether or not the Claimant acted in good faith and under the ‘new’ law whether the disclosure was made in the public interest.

These sorts of cases are notoriously hard to establish.  Detriments because of whistleblowing are often covert.

 

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