Increasing Risk of Whistleblowing Claims: Top Three Tips for Employers

15 Jul 2021

By Donna Reynolds, Employment Law Partner at Blackadders LLP

I’ll give you three guesses as to which of the many employment claims, that can be made to the employment tribunals, is on the rise. That’s right. Public Interest Disclosure, or whistleblowing, claims. And the apparent reason for this? Covid-19. 

A rise in enquiries and claims

Protect, a UK whistleblowing charity, reports in its Impact Report 2020, that the number of cases its advice line handled in 2020 was up 20% from 2019 and approximately one-third of these concerned Covid-19 related issues. Acas’ Annual Report 2019 – 2020 states that calls to its helpline tripled at the height of the pandemic. It appears that this may be translating into a rise in Tribunal cases; according to an analysis by the Telegraph, over 2,289 employment tribunal cases where a worker claims they have been dismissed for whistleblowing were made between April and December 2020. This is the highest nine-month period on record and double 2014/2015 figures.

Our experience

Over the last 16 months we’ve been providing an increasing amount of advice on whistleblowing claims, including how to identify and deal with a protected disclosure, how to avoid a potential claim, and (unfortunately) how to defend a claim. It often surprises employers to learn that there is no qualifying period of service to bring a claim and if the fact the worker made a protected disclosure is the reason, or principal reason, for their dismissal, it is automatically unfair and the compensation is unlimited. In other words, a worker could make a protected disclosure on day one of their employment, be dismissed on day two and be awarded compensation in excess of the statutory cap of one year’s gross salary.

Predicting the impact of a return to office working

We predict that the return to office working, whenever that may be, will see a rise in the number of workers raising Covid-19 related concerns including those relating to health and safety failures (both actual and potential). 

Ask any employer and they’ll tell you that it’s always preferable to deal with Covid-19 related concerns (or work-related issues) to everyone’s satisfaction rather than fight it out in Tribunal. But that will not always prove possible and, consequently, there will be some workers who believe they have suffered a detriment or been dismissed at the hands of their employer because they made a protected disclosure. 

There are some preparatory steps that an employer can take to give itself the best possible chance of successfully defending a whistleblowing claim. Late last year, we were asked by an employer to act on its behalf to defend claims brought by two ex-employees with less than two years’ service and following a Hearing in May 2021, we received a Judgement in favour of the employer earlier this month. We want to share our three top tips based on our recent experience of successfully defending such claims. 

Top tips

1. In some cases, it will be obvious when a worker is making a protected disclosure. In other cases, it will not. For example, it is a “disclosure of information”, is it simply an allegation or is it an allegation that could be a disclosure of information because of the context? If in doubt, seek advice before taking any action and whatever you do, do not write off any Covid-19 related concerns as whining or meritless allegations and do nothing or, worse, retaliate.
2. If there has been a disclosure of information, the worker must have a reasonable belief that the disclosure was being made in the public interest and tended to show a relevant failure, for example, the endangerment of the health or safety of any individual. That’s not the same as saying the information has to be actually true, meaning a disclosure can still be a qualifying disclosure even if it subsequently comes to light that the information disclosed was incorrect. However, it will be difficult for a Tribunal to find a worker reasonably believes that disclosure of information is in the public interest and tends to show that there has been a relevant failure if they know that the factual basis of the information disclosed is false. Employers can help by taking steps to ensure workers are armed with the facts: When preparing to welcome workers back to the office, make sure they are carefully planned exercises, in line with Government guidelines, and those plans are clearly (and repeatedly, if necessary) shared with workers. You should actually implement all measures and make sure workers can see they are being implemented. In addition, keep records of all steps taken to monitor and enforce compliance with any measures and rules introduced.
3. Finally, informal conversations regularly take place in the workplace between employers and employees and there’s often no reason to believe there are of any significance until after a disclosure of information is made. For example, a conversation about the use, and refusal by the employer, of furlough leave to help with childcare issues. A subsequent disclosure of information that refers to concern about catching Covid-19 at work and passing it on to a child at home might just support the view that the real reason for the disclosure was the desire to be on furlough. Make sure and keep records of these conversations even if just dates and a few lines summarising what was discussed in a note book. 

If you need any advice regarding whistleblowing or how to manage the return of your staff to the office, please get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

@EmpLawyerDonna

www.blackadders.co.uk