A number of recent cases in Ireland and the UK provide further guidance to employers on how to deal with protected disclosures made by employees and the extent of the protections afforded to whistleblowers.

A question which often arises is how best to deal with an employee who, in anticipating disciplinary action or dismissal, claims to have made, or makes a “protected disclosure” in advance of dismissal in order to better protect themselves under law.

Two recent cases demonstrate that the making of a protected disclosure by an employee in circumstances where other employment issues are at play, does not of itself, protect an employee from dismissal.

A third case considers whether a judge can bring a whistleblowing claim in circumstances were the judge does not meet the definition of a “worker” under the relevant UK Act.

1. Making of a protected disclosure “does not immunise” employee from disciplinary processes

In Department of Employment Affairs and Social Protection v Hosford, the claimant, Mr Hosford, was a civil servant working for the Department of Employment Affairs & Social Protection, who alleged that he suffered detriment over the making a protected disclosure several years previously. The Department contended that the claimant was the subject of disciplinary procedures not due to any protected disclosure he had made, but rather because of the disruptive behaviour of the claimant, such as sending emails en masse (some of which contained the disclosures), refusing to comply with reasonable management instructions, and failing to comply with Civil Service policies, codes of practice and circulars.

Decision of the WRC and the Labour Court

Mr Hosford claimed that he had been penalised under the Protected Disclosures Act 2014. His claim failed before the WRC and he appealed to the Labour Court. The Labour Court upheld the WRC’s finding, noting that the making of a protected disclosure “does not immunise” a worker from a disciplinary response to behaviours which would ordinarily cause an employer to initiate such procedures. The Court drew a distinction between the making of a protected disclosure and unrelated unacceptable behaviour of an employee. The Court found that the reason for initiating disciplinary proceedings against the claimant was the claimant’s behaviour – not the earlier making of a protected disclosure.

2. Disclosure 3we not principle reason for dismissal, belief regarding immigration status was

In the UK decision of Gibson v London Borough of Hounslow and Crane Park School, Ms Gibson was a US national employed on a fixed term contract as a teacher in the school’s autistic children’s unit. The relationship between Ms Gibson and the school became strained and Ms Gibson became an “outspoken critic” of her line managers, senior management, the acting head teacher (and her successor) and the Chair of Governors. She had “strong and well documented views” on various matters, which she raised frequently. Inevitably, the relationship broke down and Ms Gibson went on sick leave part way through a disciplinary process against her.

Her fixed term contract was due to end at the end of September 2015, to coincide with the expiry of her migrant visa. Ms Gibson could only remain in work if her visa was extended by the Home Office and that would only happen if the school was willing to continue to sponsor her. Unsurprisingly, the school decided to do nothing and, as a result, her original visa expired and the school dismissed her.

She made a number of claims, namely:

  1. unfair dismissal on the basis that the school erred in dismissing her, as she had a lawful right to work an additional six weeks until November; and
  2. her numerous complaints amounted to protected disclosures on foot of which she had suffered a number of detriments, including her dismissal.

Decision of the UK EAT

The UK EAT agreed that Ms Gibson had made a number of protected disclosures, including writing to the Office for Standards in Education about her concerns over the welfare of children at the school.

The key issue was whether those disclosures influenced the way in which the school treated her during her employment and were the principal reason for her dismissal. The UK EAT found that they were not. It said that the school’s difficulty with Ms Gibson was rooted in the problems the school had in managing her and her refusal to take instructions or follow its procedures. The EAT found that, ultimately, her dismissal was due to the school’s belief that she did not have the right to work in the UK – not the fact that she had made protected disclosures.

Ms Gibson succeeded in her claim for ordinary unfair dismissal. The school had relied on a statutory illegality as the potentially fair reason for dismissal, however, the school was incorrect as under UK immigration procedures Ms Gibson in fact had a lawful right to work an additional six weeks until November. Ms Gibson was therefore awarded six weeks compensation for her unfair dismissal.

In Gilham v Ministry of Justice, the UK Supreme Court held that a district judge could bring a whistleblowing claim under UK legislation. This was so despite her not meeting the definition of “worker” or “Crown employment”, which the legislation required for such a claim to be brought. This Briefing will focus on the “worker” point given that “Crown employment” has no equivalent in this jurisdiction and in any event was dismissed outright in this case.

Background

Ms Gilham, a district judge, raised complaints about the effect of public sector cuts on the justice system. Specifically, she claimed that there were insufficient appropriate and secure courtrooms and that judges’ workloads were too high, along with numerous administrative failures. She initially informally raised these with her local managers and senior judges before subsequently raising a formal grievance. She alleged that there were delays in investigating her complaints, that they were dismissed as being down to her personal working style and that other courts service personnel bullied, ignored and undermined her because of her complaints. Ms Gilham submitted two claims to the UK Employment Tribunal.

Her first claim, that had she been discriminated against on the ground of disability, could proceed as EU law had already established judges were workers for the purpose of discrimination claims.

However, her second claim, that she had suffered detriment because of her whistleblowing complaints, faced far more significant hurdles. The UK Public Interest Disclosure Act amendments to the Employment Rights Act 1996 (“ERA”) protects “workers” who are dismissed or otherwise treated unfairly because of complaints about certain “protected” concerns. The fact that UK whistleblowing legislation is not derived from EU law meant EU law interpretations of the term “worker” were irrelevant, a blow to Ms Gilham’s prospects of success. The UK Supreme Court noted this meant a judge may have a different status under employment law depending on whether the law in question derived from EU law or not.

The issue before the UK Supreme Court

As a result, the UK Supreme Court was not charged with dealing with the substance of Ms Gilham’s whistleblowing complaint. Instead, the UK Supreme Court in this case was faced with just one issue and two questions.

The issue concerned a judge’s ability to bring a whistleblowing complaint. The two questions which flowed were, first, notwithstanding that a judge was an officer holder, could he/she fall within the definition of a “worker” and therefore be allowed to bring a claim under UK whistleblowing legislation? If the answer to the first question was no, the second was whether that denial would constitute discrimination against her in the enjoyment of her European Convention on Human Rights (“ECHR”) rights?

Ms Gilham argued her role as a judge fell within the wider definition of a “worker” in the legislation because she had to “provide work or services for another party to the contract who was not a client or customer’. The UK Employment Tribunal, the UK Employment Appeal Tribunal and the Court of Appeal of England and Wales all held she did not meet this definition because there was no contractual relationship between her and the Ministry of Justice or the Lord Chief Justice.

The UK Supreme Court’s decision

The UK Supreme Court agreed with the three earlier decisions on the first question in finding that Ms Gilham (and anyone else in a judicial role) was not a “worker” under UK whistleblowing legislation. However, it diverged on the second question in finding that she did come within the scope of UK whistleblowing legislation as Courts must, insofar as possible, interpret legislation in a way that is compatible with ECHR rights.

As a result, the UK legislation had to be interpreted purposively to avoid a breach of the Article 14 prohibition against discrimination (provided the facts “fall within the ambit” of one of the Convention rights and there was no “reasonable justification” defence). Applying that test to the present facts, the UK Supreme Court concluded that:

  • the facts fell squarely within the ambit of the Article 10 right to freedom of expression;
  • she was treated less favourably than others;
  • the less favourable treatment was on the basis of her being of a different “status” (a protected ground), as an occupation classification was obviously capable of being a “status”; and
  • no legitimate aim had been put forward for excluding judges from whistleblowing protection.

The UK Supreme Court also noted that just because judges had significant protections against dismissal and other disciplinary sanctions, “[t]hey are not so well protected against the sort of detriments which are complained about in this case – bullying, victimisation and failure to take seriously the complaints which she was making”. The protection from detriment in UK whistleblowing legislation was deemed “much wider” than any judicial protections.

The Remedy

Having reached its decision, the UK Supreme Court was faced with what it described as “the most difficult question in the case”, namely, what remedy could it order to reconcile UK whistleblowing legislation with the ECHR? The Ministry of Justice argued that to interpret the definition of “worker” in UK whistleblowing legislation as including judges would breach statutory interpretation principles by going against the grain and constitutional principles of judicial independence. The UK Supreme Court disagreed, with the President stating “I can reach no other conclusion than that the Employment Rights Act should be read and given effect so as to extend its whistle-blowing protection to the holders of judicial office”. The ECHR demanded such an interpretation.

Potential implications for Ireland

Although only persuasive rather than a binding authority for Irish courts, the UK Supreme Court’s approach to the interpretation of the scope of employment and worker rights legislation in light of the ECHR could, if adopted in a suitable case in this jurisdiction, lead to the expansion of the scope of Irish employment legislation also. Ireland is a signatory to the ECHR and the Irish Courts would have a similar obligation to interpret the Protected Disclosures Act 2014 in a way that is compatible with the ECHR and the rights protected thereunder.

Advice to employers

Since the introduction of the Protected Disclosures Act 2014, whistleblowing claims have become an ever-developing area of employment law. These decisions throw further light on complicated, and previously unexplored aspects, of this area of employment law. Protected disclosures and unfair dismissals are increasingly presenting to employers hand-in-hand. Employers should endeavour to run separate processes for any alleged protected disclosure and any performance-related issues, such that the employer will be able to point to reasons for dismissal, which are unrelated to the making of the alleged protected disclosure. Employers should also bear in mind that the Irish Courts might take a broad interpretation of the Protected Disclosures Act, on the basis of the rights contained in the ECHR, where necessary to ensure that the protections afforded to whistleblowers are effective.