For specialist advice from employment lawyers on whistleblowing, call Cambridge Legal on 01223 776200 or email enquiries@cambridgelegal.co.uk We are Cambridge employment solicitors covering the whole country. The following is an overview of how whistleblowing applies to employees.

Whistleblowing and employment

Employees and workers are protected when they disclose information about certain types of wrongdoing, known as ‘whistleblowing’, when in their reasonable belief it is in the public interest.

The protection of employees and workers comes from the Employment Rights Act 1996. There are two kinds of protection:

Employees are protected from being dismissed because they have made a protected disclosure.
Employees and workers are protected from being subjected to detriments because they have made a protected disclosure. Detriments in this sense do not include dismissal, which is covered by the first category. What constitutes a detriment is widely defined.

History

In 1987 the Herald of Free Enterprise ferry sank in Zeebrugge because the bow doors were left open. One hundred and ninety three people were killed. The subsequent enquiry established that on five occasions staff had raised concerns that ferries were sailing with the bow doors open but nothing was done. Staff raising concerns in this way was whistleblowing.

An enquiry in 1988 into the Piper Alpha disaster in which 167 people died on a North Sea oil rig 110 miles off the Scottish coast established that the staff were on short-term contracts, had job insecurity, and were reluctant to raise concerns about safety. Whistleblowing might have averted the disaster.

A number of people were murdered by Dr Harold Shipman. The Shipman enquiry report noted: “the message that emerges from media reports of whistleblowing cases is in essence a negative one; namely that those who put their heads above the parapet and dare to speak out are liable to be penalised in some way“. Unfortunately, a number of people who could have disclosed material about Dr Shipman which might have prevented deaths were discouraged from doing so because of lack of protection for whistleblowers at the time.

The tragic consequences of the above led to the Public Interest Disclosure Act 1998 that incorporated provisions into employment law through the Employment Rights Act 1996 to protect whistleblowers who bring wrongdoing to public attention.

Importance of Whistleblowing

Lady Justice Simler DBE has highlighted the importance of whistleblowing: “Whistleblowing is fundamental to freedom of expression and has a real role to play in tackling corruption and mismanagement in the public and private sectors and also as an instrument of good governance. From Grenfell to the scandal of poor care at Winterbourne View; from the Volkswagen emissions scandal to the Panama and Paradise Papers, whistleblowing in the public interest has become a feature of 21^stcentury life; each crisis or scandal highlighting the need for ever-stronger whistleblower protection and for a culture shift that views whistleblowing positively as ‘good citizenship’“.

Qualifying Disclosures

What kind of information is whistleblowing concerned with?

The starting point for whistleblowing protection is a qualifying disclosure. A qualifying disclosure is any disclosure of information which in the reasonable belief of the worker making the disclosure is in the public interest and tends to show one or more relevant failures.

What are “relevant failures”?

“Relevant failures” are listed in the Employment Rights Act 1996:

that a criminal offence has been committed, is being committed, or is likely to be committed;
that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which he is subject;
that a miscarriage of justice has occurred, is occurring, or is likely to occur;
that the health or safety of any individual has been, is being, or is likely to be endangered;
that the environment has been, is being, or is likely to be damaged;
that sexual harassment has occurred, is occurring or is likely to occur; or
that information tending to show any matter falling within any of the preceding paragraphs has been, or is likely to be, deliberately concealed.

Information rather than allegation or opinion

To be protected, the disclosure needs to be of information rather than a statement of opinion or a mere allegation. Arguments in employment tribunal made by respondents to defend whistleblowing claims frequently focus on this. A successful claimant will be one who has made a very specific and detailed disclosure that clearly goes beyond a mere statement of position or opinion.

For example, the statement “health and safety requirements are not being complied with” is a non-protected allegation, a mere generalised and unspecific assertion. In contrast, the statement “the hospital wards haven’t been cleaned for two weeks and there is a serious risk of contamination” conveys information and would be protected. However, what constitutes “information” is not always clear. If in doubt, seek legal advice from an employment solicitor.

Protected disclosures

For whistleblowing to be protected by the law, the starting point is that there must be a qualifying disclosure as described above. However, qualifying disclosures are only protected by the law (at which point they are called “protected disclosures“) if they are made in specific circumstances. These circumstances include disclosure to the worker’s employer or a legal adviser.

Public interest

The worker making the disclosure must hold a reasonable belief, at the time of making it, that the disclosure was in the public interest.

What this means is open to argument and interpretation as there is no statutory definition of “public interest”. What we do know is that the introduction of the public interest test was designed to undo the effect of a case called Parkins v Sodexho. This had allowed an individual to claim protection where there had been a breach of his or her own employment contract which did not involve the wider interest of the public.

In Underwood v Wincanton Plc UKEAT/0163/15/RN Cambridge Legal Practice won an appeal in the Employment Appeal Tribunal concerning a joint grievance about overtime arising out of employee contracts. It was the second ever case on the public interest test and appears in the leading books on the subject. The joint grievance was found to satisfy the public interest test even though it only affected a just a few colleagues.

See our successful whistleblowing appeal to the Employment Appeal Tribunal http://www.bailii.org/uk/cases/UKEAT/2015/0163_15_2708.html

A Court of Appeal case known as Chesterton has recently decided that whether a disclosure is in the public interest will depend on the facts of the individual case taking into account the number of people potentially affected, the importance of their interests, the type of wrongdoing including whether it is deliberate, and the identity of the alleged wrongdoer.

Good faith

The Enterprise and Regulatory Reform Act 2013 that introduced the public interest test mentioned above also changed the law by abolishing the need for the disclosure to be made in good faith.

Before the reform, employers defending whistleblowing claims would argue that the worker was in some way malicious and therefore acting in bad faith by revealing the information. If accepted by the tribunal the employee would not be protected. If the information disclosure was relevant to protecting the public interest, the former requirement to show good faith in addition was an irrelevance and barrier to revelation of the truth. Why should the motivation for revealing the information have any part to play in determining whether protection should be given? Denying someone protection simply because their motivation may have been questionable would, if anything, have reduced the likelihood of potentially important information being revealed.

There is no longer a requirement of good faith, but tribunals can reduce compensation by up to 25% if the protected disclosure was not made in good faith and it seems just and equitable to do so in all the circumstances. In unfair dismissal claims the reduction can only be made to the compensatory award, not the basic award.

Remedies

Dismissal

Dismissal of an employee is unfair if the reason (or if more than one, the principal reason) for dismissal is that the employee made a protected disclosure. If so, the dismissal will be automatically unfair, without the need to consider reasonableness in all the circumstances. Automatic unfair dismissal does not require the employee to have been employed for any specific period of time. There is no minimum requirement of service to claim this form of unfair dismissal. There is no cap on the compensatory award.

Detriment

A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his or her employer because he or she has made a protected disclosure (i.e. is a whistleblower). “Detriment” doesn’t have a statutory definition but has a wide meaning and can include being disadvantaged in all sorts of ways at work. However, an unjustified sense of grievance will not suffice.

Where an employee or worker (the whistleblower) is subjected to the detriment by a co-worker or by an agent of the employer because they made a protected disclosure, the employer can now be vicariously liable and the co-worker or agent may also be liable. This was introduced by the Enterprise and Regulatory Reform Act 2013.

Contractual duties and whistleblowing

Provisions in any agreement that preclude a worker from making a protected disclosure (blowing the whistle) are void. Considering the purpose of the legislation, which is to protect whistleblowers, it would not be right if employers could use “gagging” provisions to prevent disclosure of information.

The attempt to silence whistleblowers is most likely to arise in employment contracts or settlement agreements. Abuse of NDA (non-disclosure agreements), more commonly referred to in England & Wales as confidentiality agreements, to cover up wrongdoing came to attention in relation to the Harvey Weinstein abuses. It is perfectly legitimate to settle a claim concerning a protected disclosure that has been made, but any contractual term in the settlement agreement which seeks to prevent further protected disclosures from being made is void. Whether you are an employer or employee in this situation, there is no substitute for good legal advice from an employment solicitor. The employee needs to avoid breaching the contract, while the employer needs to maximise protection for what they will consider to be confidential information.

Message not the messenger

“I hope that it will mean that good and decent people in business and public bodies throughout the country can more easily ensure that where malpractice is reported in an organisation the response deals with the message and not the messenger.” – Richard Shepherd MP, 11 March 1998 concerning the Bill that became the Public Interest Disclosure Act 1998, subsequently incorporated into employment law through the Employment Rights Act 1996.

For legal advice on any aspect of employment law or whistleblowing, particularly if you are looking for employment solicitors in Cambridge, call Cambridge Legal on 01223 776200 or email enquiries@cambridgelegal.co.uk