“Was it something I said?” Whistleblowing during the pandemic

5 February 2021

You may be surprised to learn that you are whistleblower and could be entitled to significant compensation. You may also be considering the dismissal of a whistleblower. In each case, things need to be handled very carefully.

Whistleblowing often gets a bad rap.  People can sometimes associate it with compliance-gone-crazy and, ultimately, career suicide.  Nothing to do with me, you might think. Think again.

You may be surprised to learn that, without realising it, you yourself may be a whistleblower. Or you may have been one in the past. If you are a manager, you could easily come across a situation in which you are expected to manage (or even dismiss) a whistleblower, without anyone warning you of the dangers. In many cases, whistleblowing is a lot less obvious than you might expect. It can also be far from career ending. Many whistleblowing cases result in high value settlement agreements. Whether that is right from a public policy perspective may be in question, but it remains the reality for now. Whistleblowing legislation covers more than just employees; it also covers workers and case law has extended coverage to LLP members and judicial office-holders.

During the pandemic we have seen an increase in whistleblowing matters. This is unsurprising given the numerous ways in which the pandemic has raised concerns relating to, for example, health and safety, contracts and pay, as well as furlough fraud.

Even commuting to work carries considerable risk for some and can raise legitimate health and safety concerns if employees or workers are required to commute to their workplaces. It seems we also have “long Covid” to contend with now, which is affecting both the young and the elderly. How can employers and workers really be sure a workplace is “Covid safe” when the virus is so new and mutating rapidly. The Government also keeps making U-turns with its policies in respect of tackling the pandemic and we now find ourselves in a further lockdown. All of this throws up considerable headaches for employers and anxiety for many workers. It is essential to know your rights as an employee or worker and your obligations as an employer during this fraught time.

Many clients frequently come to us with what might superficially be regarded as fairly “vanilla” redundancy or termination of employment situations, to find on closer scrutiny of the facts that they are in fact whistleblowers under UK employment law and may be entitled to claim significant compensation from their employers.

On the flip side of this, some employers do not always realise when a troublesome employee is in fact a whistleblower. It is easy to feel a false sense of security that an employee with less than two years’ service (the qualifying period for an ordinary unfair dismissal claim) and no obvious discrimination claims can be dismissed without any significant problems or liabilities.  However, where there is a valid whistleblowing claim, length of service is not a bar to bringing a claim in an Employment Tribunal and there is no statutory cap on damages that can be awarded, as there is in ordinary unfair dismissal cases.

Employers and workers can often (understandably) miss whistleblowing, as it can be wrapped up in grievances or raised during meetings and presentations that include other general allegations or facts not relating to perceived wrongdoing.  Also, because UK whistleblowing legislation and case law is perceived as and is quite complex, not everyone is fully aware of their rights and obligations in this area.


So how can you tell if you are or a worker is a whistleblower? 
Although every case will turn on its own facts, here are a few signs to look out for - or to follow if you wish to benefit from whistleblower protection in the UK:

  • You have (or the worker has) raised concerns in writing or verbally to the employer (or other third party in more limited circumstances). The concerns do not need to be raised in any formal way. Although it is obviously easier to prove that they have been made if they are clearly set out in writing, a comment in a chance encounter at the coffee machine may be enough.
     
  • The concerns raised include information that relates to one or more of the following:
     
    • breach of any legal obligation (including breach of regulatory obligations); 
    • a criminal offence;
    • miscarriages of justice;
    • danger to the health and safety of any individual;
    • damage to the environment;
    • the deliberate concealing of any of the above.
       
  • Breach of any legal obligation is one of the most frequently raised concerns and it can include concerns regarding the employer, or a third party, another employee and matters that have occurred in the past, present or that are considered likely to occur in the future. 
     
  • The worker needs to have a reasonable belief that the information disclosed tends to show one of the relevant failures i.e. breach of legal obligation.
     
  • The worker needs to reasonably believe that the disclosure was made in the public interest. This is a fairly low threshold test based on recent case law.
     
  • There needs to be a causal link between any disadvantage (detriment) suffered and/or dismissal and the whistleblowing. This is often the area of the greatest challenge in whistleblowing cases.
     
  • Whistleblowing no longer needs to be in “good faith”.  Therefore, workers could have financial motives for blowing the whistle and this would not be a bar to their claims. However, any compensation awarded can be reduced by 25 percent if an Employment Tribunal finds that there was bad faith. 

What can employers do to reduce the risk?

  • Have a clear whistleblowing policy in place, coupled with clear and thorough training on the policy, so that people understand the way in which to raise their concerns and managers can better identify potential whistleblowing and know how to deal with it.
     
  • Where practicable, implement a whistleblowing hotline and/or appoint a whistleblowing officer at a senior level to investigate and deal with concerns raised as soon as possible.
     
  • Be on alert for concerns raised by workers that suggest any form of wrongdoing and seek legal advice early before matters escalate out of your control and ensure best practice is followed.
     
  • In regulated sectors, be particularly sensitive to any information provided by workers which may suggest any regulatory breaches. This means that managers need to be fully aware and up-to-date on all relevant regulatory obligations.
     
  • If an employer has a fair reason to dismiss an employee who is or may be considered a whistleblower, ensure that a fair procedure is followed, including a reasonable investigation carried out and well documented reasons for dismissal that are communicated to the employee that are not because of the employee’s potential whistleblowing.  There may be cases where the manner in which an employee blows the whistle or the wrongdoing that the employee is complaining about is connected with their own wrongdoing. Such cases need to be handled carefully and you should seek legal advice as soon as possible.
     
  • Do not assume that, if someone has less than two years’ service and no obvious “protected characteristics”, they do not have a potentially serious employment law claim. They may well have!  

Concluding thoughts

Whistleblowing can help organisations to improve and to root out hidden problems.  Although the knee jerk reaction may be to cast off a whistleblower as a “troublemaker” and a waste of management time, I would suggest a more open-minded approach. They may in fact be raising valid concerns that can help the organisation enormously, as well as helping it to avoid legal pitfalls.

For individuals who have been dismissed or are facing ill-treatment at work, it is well worth considering whether it might be linked with some form of whistleblowing.

And for both organisations and individuals, don’t necessarily expect to hear anything like a shrill blast from an official brandishing a yellow card.  Whistleblowing can often arise in a seemingly day to day email. It is important to take legal advice from the earliest opportunity if you suspect that you may be a whistleblower, or if you suspect that one of your employees, or workers may be a whistleblower. 

FURTHER INFORMATION

If you would like any further information or advice about the issues explored in this blog, please contact Natasha  or a member of  our Employment team.

 

About the author

Natasha acts for both employers and senior executives in a wide variety of sectors including (but not limited to) financial services, law firms and other professional services firms and retail and luxury brands.

Natasha is a tenacious litigator and an astute negotiator. She acts in relation to the full range of employment-related issues. She particularly enjoys handling whistleblowing and discrimination cases and helping clients achieve success. 

Natasha comments in the media on employment-related issues, including as a contributor to a recent BBC radio broadcast on sex discrimination and sexual harassment in the workplace.

 

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