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/ 06 Oct 2020

Whistleblowing and Covid-19

Whistleblowing – a disclosure made by an employee or worker to the employer – can trigger Tribunal claims for detrimental treatment and automatic unfair dismissal.

An employee or worker has the right not to be subjected to any detrimental treatment or to be dismissed for having made a protected disclosure (sometimes referred to as whistleblowing detriment and dismissal).

Whistleblowing – Protected Disclosures

A protected disclosure is any disclosure of information that tends to show specified wrongdoing, risk or malpractice – one of the relevant failures – and that is in the public interest to make. The disclosure by the employee or worker can be made verbally and does not need to be in writing.  Should an employee or worker make such a disclosure to their employer, it would be likely to qualify as a protected disclosure.

The Employment Tribunal (“Tribunal”) would have the final determination on whether or not any particular disclosure, in fact, had amounted to a protected disclosure.

The information disclosed by the worker/employee must tend to show one of the relevant failures:

1. that a criminal offence has been committed, is being committed or is likely to be committed;

2. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;

3. that a miscarriage of justice has occurred, is occurring or is likely to occur;

4. that the health or safety of any individual has been, is being or is likely to be endangered;

5. that the environment has been, is being or is likely to be damaged; or

6. that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

The employee/worker who makes a protected disclosure to the employer is sometimes referred to as a whistle-blower and should not be subjected to detrimental treatment or dismissed for having raised a protected disclosure.

The employee/worker can make their disclosure to someone other than their employer, such as a regulator (a prescribed person), their legal advisor or the press. However, additional considerations will apply when a Tribunal determines whether the disclosure qualifies as a protected disclosure; for example in the case of making a disclosure to the press a Tribunal would consider whether the employee or worker held a reasonable belief that their disclosure was true when making the disclosure.

It is advisable for all employers to have a Whistleblowing Policy in place to guide their staff on the appropriate procedure when making a protected disclosure, and it is advisable for staff to follow the Whistleblowing Policy when making a disclosure to the employer that they seek to evidence as qualifying as a protected disclosure.

Whistleblowing Tribunal claims

1. Detrimental treatment:

An employee or worker who believes they have been subjected to detrimental treatment that has been materially influenced by them having made a protected disclosure can bring a Tribunal claim against their employer, further to section 47B(1) of the Employment Rights Act 1996 (the “ERA 1996”). The employee/worker can also bring a claim against the individual co-worker or agent of the employer who treats them detrimentally, further to section 47B(1A) of the ERA 1996.

If successful in their claim, the employee or worker would be awarded an Injury to Feeling Award and possibly other amounts such as an amount for loss of wages or personal injury caused by the detrimental treatment.

2. Automatic Unfair Dismissal:

An employee who has made a whistleblowing protected disclosure has the right not to be dismissed for the reason, or, if there is more than one reason for the dismissal, the principal reason of having made the protected disclosure, further to section 103A ERA 1996.

For this claim, there is no requirement for the employee to have accrued 24 months of employment at the date of termination of their employment. The employee has the right to make such a claim from day 1 of their employment.

If successful, the award of compensation in an automatic unfair dismissal claim is unlimited – it is not subject to the statutory cap as in ordinary unfair dismissal claims. Compensation would include a Basic Award, an amount toward any loss of wages (including pension losses) and possibly other amounts if appropriate.

Whistleblowing and COVID19

It has recently become much more common for employees/workers to raise concerns to their employer about health and safety in the workplace. In certain circumstances, such a disclosure may amount to qualifying as a protected disclosure, providing the employee with legal protection from detrimental treatment and dismissal for having raised those concerns with the employer.

It is important in these circumstances that such reports are managed under the appropriate whistleblowing policy of the employer, and that measures such as training are put in place to mitigate the risks of co-workers subjecting that employee to detrimental treatment for having made the protected disclosure.

Hanne & Co services

If you are an employer, Hanne & Co can assist your business by providing a compliant Whistleblowing Policy that is tailored to your individual needs. We are able to provide advice on applying legally-compliant internal procedures related to whistleblowing that mitigate the risks of an employee or worker later succeeding in any Tribunal claims or reducing the compensation payable if they are successful. We can provide your business with advice and representation should an employee or worker bring claims against the business for whistleblowing detrimental treatment and dismissal, and can support your business to negotiate an agreed outcome to any claims under the terms of a settlement agreement.

If you are an employee/worker, Hanne & Co can advise and support you to bring your claims for whistleblowing detrimental treatment and dismissal in the Employment Tribunal, the first step of which is to notify ACAS of the claims. Hanne & Co have significant experience of drafting and pursuing whistleblowing Tribunal claims on behalf of Claimants. We have experience of securing fair and favourable settlement outcomes for Claimant clients who assert whistleblowing claims.

Time Limits

The Tribunal will apply strict time limits to those who seek to bring whistleblowing claims.

The notional Tribunal claim submission time limit is:

1. Detrimental treatment – three months, less one day, of the date of the detrimental treatment complained of.

The Claimant must notify ACAS of their potential whistleblowing detrimental treatment claim within three months, less one day, of the date of the detrimental treatment complained of – the primary time limit.

The Tribunal has discretion to accept a claim that was submitted outside of the primary time limit if it considers it is just and equitable to do so.

2. Automatic Unfair Dismissal – three months, less one day, of the effective date of termination of employment.

The Claimant must notify ACAS of their potential whistleblowing automatic unfair dismissal claim within three months, less one day, of the date of termination of their employment – the primary time limit.

The Tribunal has discretion to accept a claim that was submitted outside of the primary time limit if the Claimant can show it was not reasonably practicable to submit the claim within the primary time limit, and that they had submitted their claim as soon as was reasonably practicable.

If you have any concerns about whistleblowing or the legal principles that are applied by the Tribunal when it considers claims for whistleblowing detrimental treatment and dismissal, please get in touch. These issues are complex and claims can be expensive, both in terms of financial and emotional costs, so early legal advice is always advisable.

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