The new whistleblowing rules for banks and other large financial institutions are due to fully come into force on 7 September 2016 and, overseen by their Whistleblowing Champions, firms will have been preparing for their introduction. The regulators have indicated that they will consider extending the rules to other organisations they regulate and until then, the text of the rules act as non-binding guidance for those organisations.

It is important to remember that, alongside the specific obligations for firms, attention should be paid to the ever-evolving case law on whistleblowing which applies generally to all organisations.

In the recent case of Royal Mail v Jhuti, Ms Jhuti disclosed concerns to her line manager about a colleague offering discounts to clients in breach of company rules and Ofcom’s requirements. Ms Jhuti’s line manager then set her unattainable targets. Ms Jhuti raised a formal grievance in relation to her manager’s work criticisms and she took sick leave. The case officer reviewing her case had no sight of Ms Jhuti’s emails mentioning the disclosure or her concern that her treatment resulted from this and, relying on the evidence of under-performance before her, dismissed Ms Jhuti.

The issue here for employers is that the dismissing officer had no knowledge of Ms Jhuti’s disclosures. She had known that Ms Jhuti had raised a query about inappropriate client discounts but had been told (by Ms Jhuti’s line manager) that this issue had been resolved. When considering whether this was a dismissal for making a protected disclosure the EAT ruled that what had to be determined was the reason (or principal reason) for the dismissal: the mind of the dismissing officer does not have to be equated with that of the employer. If that person’s decision is manipulated by someone in a managerial position, who is in possession of the true facts, this knowledge can be attributed to the employer. Here, Ms Jhuti’s poor performance resulted from the actions taken by her line manager to set her targets she could not reach.

Firms should ensure that the whistleblowing arrangements that they are putting in place properly note and log disclosures so that knowledge of the disclosure is passed to a decision maker. Line managers should clearly understand their obligations; failure to comply should, in appropriate cases, be a disciplinary offence.

Aside from regulatory issues, there is no financial cap on compensation for whistleblowing and no qualifying period for a worker to bring a claim. One of the largest ever tribunal awards (£3.4m) was made to a director who was dismissed after he raised concerns over his fellow directors’ actions (Best v Medical Marketing International Group plc (in voluntary liquidation). Firms should remind line managers that it is irrelevant if they believe the facts in the disclosure to be untrue. The issue is whether the worker subjectively believes that the relevant failure has occurred or is likely to occur – and that belief is objectively reasonable. It is also irrelevant that the alleged failure does not fall within one of the protected categories – provided the worker reasonably believes that it does.

In a separate development, the Court of Appeal will hear the appeal in Chesterton Global v Nurmohamed [2015] on 11 or 12 October 2016. Disclosures made on or after 25 June 2013 must satisfy the test of being ‘in the public interest’. In the case of Nurmohamed, the EAT ruled that such a disclosure need not be in the interest of the wider public and a relatively small group would suffice. Nurmohamed was followed by Underwood v Wincanton plc [2015] in which the EAT ruled that a dispute between an employer and four employees over contractual terms could be a protected disclosure. In Morgan v Royal Mencap Society [2016], the EAT held that a complaint about an employee’s cramped working conditions could potentially be a protected disclosure. Further guidance on ‘in the public interest’ will therefore be welcomed from the Court of Appeal.

You can read the case report in Jhuti here

Read our earlier briefing on the whistleblowing rules in the financial services sector here