What does the new government mean for public lawyers?
It was recently reported in the media that a former risk officer at a well-known bank was offered (although he refused) an $8.25 million reward by the Securities and Exchange Commission in the US for blowing the whistle on his employer. In light of this, we have asked ourselves ‘has there ever been a better time to be a whistleblower’?
We have written before on a trend we have noticed to be developing in the Employment Appeal Tribunal of decisions interpreting protected disclosure legislation in favour of whistleblowers. For example, we saw the ever tricky issue of causation dealt with in Royal Mail Group v Jhuti and the opaque concept of ‘public interest’ tackled in Underwood v Wincanton. The recent case of McTigue v University Hospital Bristol has certainly not bucked this trend.
Ms McTigue was a nurse working in a centre run by the University Hospital Bristol NHS Foundation Trust, but was employed by a third party agency. That agency handled matters such as her pay and disciplinary issues through its contract with her, but she also had a separate ‘Honorary Contract’ with the Trust which (among other things) allowed them to terminate her engagement if there were issues relating to patient safety.
She brought a claim of victimisation against the Trust on account of suffering a series of detriments after she had made protected disclosures to it (her claim against the agency was dropped). This claim was rejected by the Employment Tribunal at first instance because Ms McTigue did not fall within the extended definition of worker under section 43K(1) of the Employment Rights Act 1996. It did so because it was of the view that this definition would only be satisfied if the Trust had the power to determine the significant terms of the contract - otherwise she was not a worker employed by it.
On appeal the EAT overturned this decision. It looked purposively at Parliament’s intention behind the introduction of the extended definition, which was to enhance protection for agency workers, in particular for those working in health care. It was held there could in fact be two employers for the purposes of protecting whistleblowers in such situations – all that is required is for both the agency and the Trust to have “substantially determined” the terms of her contract.
There is no need to engage in a comparative exercise and weigh up what each potential employer had determined – something which no doubt would have led to inconsistencies, and perhaps injustices, when applied to the facts in other cases by Employment Tribunals. As such, this simplification of the law should make it easier for whistleblowers who are agency workers to get their foot in the door with regard to a claim under the protected disclosure legislation.
This decision, and the others mentioned above, comes at a time when there is a clear drive towards encouraging and supporting whistleblowers in the financial services sector. For example, as part of the new Senior Managers and Certification Regime, the FCA and PRA have introduced a requirement for a ‘whistleblowers’ champion’, as well as improved internal whistleblowing policies and procedures. This currently applies only to deposit takers, but is very likely to be extended to all financial services firms within the next couple of years.
Overall, it seems that the courts, the Government and the regulators are committed to improving transparency and accountability in a whole range of sectors, both public and private. We consider that the Court of Appeal’s decision in Chestertons v Nurmohamed (expected later this year), on what the concept of ‘public interest’ means, may well be a good gauge of how deep the courts’ commitment runs and how well the new regulatory regimes may be supported by them.
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