Two recent cases have resulted in whistleblowing protection being extended to cover individuals in circumstances which may not seem immediately obvious. Tribunals appear to be interpreting the legislation in favour of those who whistleblow to ensure they are protected.
This may be because the evidence is that individuals are still very reluctant to come forward and report wrongdoing. A report by Public Concern at Work in August 2016, following a five year review, found: that 80% of whistleblowers experienced negative final outcomes; that there is a decline in those who say they would raise a concern about serious malpractice; and only 1% of whistleblowing claims between 2011 and 2013 were successful.
In addition, there has been an increase in costs awards against claimants which Public Concern at Work, unsurprisingly, considers will discourage whistleblowers from pursuing claims and undermines the objectives of the legislation.
Direct knowledge of whistleblowing disclosures not needed
In Royal Mail Group v Jhuti the EAT held that an employer was liable for automatic unfair dismissal for whistleblowing where an employee was dismissed for poor performance but the dismissing officer had no knowledge of her whistleblowing allegations.
Their reasoning was that as the employee’s line manager had been responsible for manipulating the situation resulting in her dismissal, following her whistleblowing allegations, by setting her impossible performance targets, his motivation and reason had to be taken into account.
It was therefore inevitable that she would be found to have been dismissed for making protected disclosures.
- This is not a helpful decision for employers and it confirms that, unlike for direct discrimination, the decision-maker does not need to know about whistleblowing for the employer to be liable if the situation has been manipulated in order to effect a dismissal.
- HR should ensure that any dismissing officer is made aware of the full background to any disciplinary or performance hearing where protected disclosures have been made.The danger of keeping quiet and not informing the dismissing officer of the situation is that the employer could be on the hook for unlimited compensation for an employee who does not have the service to bring an ordinary unfair dismissal claim.
Agency workers protected against detrimental treatment for whistleblowing
The Employment Rights Act contains an extended definition of “worker” which applies to workers who are introduced or supplied by one party to a third party and the terms on which the worker is engaged are substantially determined by the person for whom that individual works or by a third party or both of them.
The meaning of “substantially determined” was considered in the recent case McTigue v University Hospital Bristol NHS Foundation Trust. Here the EAT held that the correct approach to this was to look at who, as between the individual and the other parties, substantially determined the relevant terms. If the individual substantially determined their own terms they would not be a worker in this context.
However, where an agency and end user determine the terms between them, both might be taken to have “substantially determined” the terms. It was not necessary to look at who, between the agency and the end-user, determined the majority of the terms.
- This decision significantly widens whistleblowing protection beyond traditional employees and workers to circumstances where a person works on third party premises such as agency workers or secondees, provided the individual is not responsible for determining their own terms of engagement.
- Employers should ensure they have in place appropriate channels for agency workers and other non-employees who are working on their premises to raise whistleblowing concerns.
This month the Court of Appeal was due to hear Chesterton v Nurmohamed which concerns the public interest test. However, due to lack of court time this was not heard and another date has yet to be confirmed.
Unfair dismissal: the risks of ignoring a subject access request
How to deal with a subject access request is a tricky issue particularly where the employer suspects the individual making it is on a fishing expedition for a subsequent tribunal claim. However, employers should be careful how they respond because if they refuse to reply on the basis the request is not proportionate or simply ignore it they can come unstuck.
In McWilliams v Citibank, an FX trader was suspended and then dismissed for disclosing client confidential information in Bloomberg online chatrooms.
A tribunal found that her dismissal was unfair partly because of the failure by Citibank to respond to her subject access request. It considered the failure had materially affected the employee’s ability to respond to the disciplinary allegations as she was suspended and had no access to colleagues or papers.
Citibank made no attempt to supply documents on more limited terms or make a proportionate search.
- Employers should consider making some attempt to supply documents on a limited basis to avoid criticism and a finding of unfair dismissal by a tribunal.
- Although it is an abuse of the data protection legislation to fish for documents to support litigation, the ICO’s view, in its guidance, is that this does not exempt the employer from the obligation to comply with a request.