We are seeing an increasing volume of whistleblowing cases stretching the boundaries of the legislation and showing a trend towards expanding the protections available to both employees and workers in the UK.
From an employer's perspective, these cases can be complex and unpredictable. From the individual's perspective they are attractive cases to run for 2 main reasons. Firstly, when an individual is advancing an unfair dismissal complaint linked to their making protected disclosures then the ordinary qualifying period of 2 years' service is not required. Secondly, the potential recoverable compensation is uncapped for whistleblowing cases. Clearly, these cases can be damaging to organisations' reputations and accordingly present commercial risks.
For these reasons, whistleblowing claims are attractive to claimants and it is not unusual for there to be preliminary hearings with individuals seeking to bring themselves within the scope of the legislative protections.
Whilst there were a number of changes to whistleblowing law in the Summer of 2013, the Government is currently consulting on potential further amendments. The consultation requires evidence to be gathered but it is useful to note the areas being examined, which include:
whether the categories of wrongdoing are extended beyond the existing ones;
whether to introduce a mandatory referral of whistleblowing claims to prescribed persons (e.g. industry regulators), providing them with key information;
whether to amend the definition of worker so as to include individuals not currently covered, including job applicants;
whether to introduce financial incentives for whistleblowing; and
whether to introduce a non-statutory code of practice to guide employers on the best practice principles for whistleblowing policies within their organisations.
As well as the Government review, Public Concern at Work, the whistleblowing charity, published a whistleblowing Commission Report in November 2013 making 25 recommendations. Clearly, this is a fast paced and evolving area and the two cases below reflect the legislative trend towards expanding the protections.
Norbrook Laboratories (UK) Ltd v Shaw
The Employment Appeal Tribunal upheld a first instance tribunal decision that three e-mails raising concerns about the dangers of driving in heavy snow conditions amounted to a qualifying disclosure for the purposes of the whistleblowing provisions of the Employment Rights Act 1996 (ERA).
Although each e-mail in isolation was not a qualifying disclosure individually, the three e-mails taken together amounted to such a disclosure. It did not matter that the last e-mail had a different recipient to the earlier two because the earlier communications were "embedded" in the later communication. The e-mails communicated information about danger to the health and safety of individuals within section 43B(1)(d) of ERA.
Case law had previously established that separate correspondence can cumulatively amount to a qualifying disclosure. The Norbrook case now confirms that such correspondence need not be to the same recipient where the earlier correspondence is clearly embedded in it. On the facts of this case, it was clear in the final e-mail to Human Resources that earlier correspondence had been sent about the dangers of driving in the snow.
This case shows the sensitivity around protected disclosures and the extent to which HR staff and managers need to be alert to the risk of communications being cumulatively found to amount to a protected disclosure.
Any attempt to isolate individual employee communications and defeat a whistleblowing claim may very well be deemed to be artificial and there is a heavy burden on organisations to have regard to the full extent of employee communications in assessing the risk of whistleblowing claims.
Clyde & Co v Bates van Winkelhof
This Supreme Court decision is eagerly awaited after a 2 day hearing at the end of March this year.
The appeal hinges on whether a member of a limited liability partnership is a worker under the ERA and therefore permitted to bring a whistleblowing claim. The Claimant was a partner at Clyde and Co and claims she was dismissed after making allegations against the managing partner of the firm's Tanzania operations. The Court of Appeal previously held that members of limited liability partnerships were not workers under employment legislation.
The claimant is supported by Public Concern at Work and it is expected to raise public interest issues for consideration by the court, concerning both partnership and human rights law. The case will be closely monitored by professional services firms as senior personnel may be in the best position to spot wrongdoing and be equipped to report matters to regulators. Should they be found to be entitled to the protections then this will have significant implications.
Whilst this is a preliminary point before the determination of the claimant's main complaints it may very well mark another expansion of the whistleblowing protections. We will report further on this case once the decision has been published by the Supreme Court.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2014. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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