Whistleblowing

The Public Interest Disclosure Act 1998 (PIDA) – often referred to as the ‘Whistleblowing’ Act – was introduced in the wake of various workplace scandals and disasters after official enquiries revealed that workers had known of the situation but were too scared to come forward to raise the alarm.

PIDA amended the Employment Rights Act 1996 (ERA) in order to provide a legal remedy for people who suffer a detriment as a result of disclosing information relating to crimes, breaches of a legal obligation, miscarriages of justice, dangers to health and safety or the environment and to the concealing of evidence relating to any of these. In particular, PIDA makes it automatically unfair dismissal to dismiss an employee for making a protected disclosure to someone to whom they are entitled to make it or to penalise them for doing so. There is no statutory cap on the compensation payable for claims derived from whistleblowing.

The Enterprise and Regulatory Reform Act 2013 made certain changes to the whistleblowing laws. Firstly, a legal loophole which meant that the definition of public interest included someone blowing the whistle about the terms of their own employment contract was closed so that a disclosure will not be protected unless the employee making it reasonably believes that doing so is in the public interest.  Secondly, the requirement that a worker who makes a protected disclosure must be acting in good faith in order to be protected against dismissal for having made it was removed. In its place, an Employment Tribunal (ET) has the power to reduce the compensation award by 25 per cent if it finds that a disclosure was not made in good faith. Lastly, the law has been strengthened so that individuals who suffer a detriment at the hands of a co-worker for making a protected disclosure can bring ET claims against both their co-worker and their employer in respect of that detriment. Employers will not be held liable for the actions of the co-worker if they can show that all reasonable steps were taken to protect the worker from the co-worker’s action.

Recent cases have clarified the law as it applies to those making protected disclosures.

The Meaning of 'In the Public Interest'
In Chesterton Global Limited and Another v Nurmohamed, the issue was whether or not an employee's disclosures regarding his employer's method of calculating the remuneration of senior employees satisfied the 'public interest test'.

Mr Nurmohamed was the director responsible for sales at estate agent Chestertons' Mayfair office. In January 2013, his employer introduced a new commission structure which he feared would have a negative impact on his salary. Having examined the accounting information in detail, he twice reported his concerns to the area director that the level of costs had been misstated and the profit and loss figures used to calculate commissions and bonus payments were inaccurate, one of the effects of which was to reduce the amount of remuneration paid to him and 100 other senior managers. He also raised the issue with the director of human relations.

Mr Nurmohamed was dismissed and claimed that he had suffered detriments and had been automatically unfairly dismissed for having made protected disclosures. His claim was upheld by an Employment Tribunal (ET). In reaching its decision, the ET held that a matter was in the public interest where a section of the public would be affected by its disclosure, rather than just the individual concerned. It found that Mr Nurmohamed believed that his disclosures were in the interest of the 100 senior managers and the belief was reasonable.

Chestertons appealed on the ground that the ET had erred in concluding that disclosures made in the interest of the senior managers could qualify as being in the public interest when these related to personal contracts in each case. Furthermore, it argued that it was for the ET to determine objectively whether or not the disclosures were of real public interest and it had failed to do so.

The EAT dismissed those arguments and upheld the ET's decision.

The case has now been heard by the Court of Appeal, which noted that the particular issue in the appeal was whether a disclosure which is in the private interest of the worker making it becomes in the public interest simply because it serves the private interests of other workers as well.

The Court rejected arguments put forward by pressure group Public Concern at Work, which was permitted to appear as an intervener in the case, that any disclosure is in the public interest if it is in the interests of anyone else besides the worker who makes it. Such an approach would be mechanistic and require the making of artificial distinctions.

However, the Court noted that the public interest test would clearly be met by the example of a doctor making disclosure of pay irregularities across the entire NHS workforce of over a million employees. Where a disclosure benefited the person who made it, there could nevertheless be features of the case that rendered it reasonable to view it as being in the public interest.

The correct approach was therefore fact sensitive and depended on the particular circumstances of each case. The Court acknowledged that such a test did not create a clearly defined rule but depended on a nuanced approach. However, applying that principle to the facts of this case, the Court found that the disclosures made were protected and dismissed Chestertons' appeal.

Whistleblowing – Information or Allegation?
In Cavendish Munro Professional Risks Management Limited v Geduld, the Employment Appeal Tribunal (EAT) established the principle that, for the purposes of the whistleblowing provisions of the ERA, to qualify for protection a disclosure must be the giving of information as distinct from an allegation. In the recent case of Kilraine v London Borough of Wandsworth, the Court of Appeal agreed with the EAT that care must be taken when applying this principle as the two are not mutually exclusive.

Ms Kilraine was employed by the London Borough of Wandsworth as an Education Achievement Project Manager until her employment ended in September 2011. The reason given for her dismissal was redundancy. However, she claimed that she had been subjected to detriments and was dismissed for making four protected disclosures. She subsequently brought claims against her employer for unfair dismissal and automatic unfair dismissal.

The Employment Tribunal (ET) upheld her unfair dismissal claim on the basis that her employer had failed to consult with her. However, she was awarded no compensation after the ET found that she would have been made redundant in any event. Her claim that she had been automatically unfairly dismissed due to whistleblowing activities also failed. In reaching its decision, the ET found that the third and fourth disclosures she cited had not conveyed any information at all, but were merely allegations.

The EAT dismissed Ms Kilraine's appeal against the ET's decision. However, whilst it judged that the ET was correct in finding that the fourth disclosure, an email sent to a human resources officer saying that she had reported a safeguarding issue to a colleague but had not received a satisfactory response, did not amount to a protected disclosure, it had erred when stating that it was nothing more than an allegation. Whilst it did make an allegation, in the EAT's view it also gave information about what was or was not said during a meeting that took place after Ms Kilraine had reported the issue. The disclosure contained in the email was, however, too vague to qualify for protection. The EAT went on to caution against ETs being 'too easily seduced' into asking whether a disclosure was one or the other when 'reality and experience suggest that very often information and allegation are intertwined'.

The Court of Appeal upheld the EAT's decision. The email sent by Ms Kilraine did provide information. However, it could not found a whistleblowing claim in that it did not tend to show that she believed that a person had failed, was failing, or was likely to fail, to comply with a legal obligation.

Whether an identified statement or disclosure in any particular case does provide information that meets the standard required to qualify as a protected disclosure will be a matter for evaluative judgment by the ET based on all the facts of the case, including the context in which the statement was made, where this provides relevant evidence, as well as the words spoken.

EAT Decision Reinforces Agency Workers' Rights
In a guideline decision, the EAT has reinforced the rights of agency workers for the purposes of the whistleblowing provisions of the ERA, underlining that it is legally possible for a person to have one job but more than one employer (McTigue v University Hospitas Bristol NHS Foundation Trust).

Ms McTigue had been recruited by an agency, Tascor Medical Services Limited, which had an arrangement to supply staff to work at a sexual assault referral centre operated by the University Hospitals Bristol NHS Foundation Trust. She worked as a forensic nurse carrying out medical examinations and providing related services at the centre.

Ms McTigue had a written contract of employment with Tascor, which paid her salary, authorised any overtime she worked and operated the disciplinary and grievance procedures that applied to her. She had also been issued with an Honorary Appointment by the Trust. This was a standard form contract which authorised her to carry out her duties as a forensic nurse examiner, identified a named supervisor and also reserved the Trust's right to terminate the contract in circumstances which could jeopardise the continuity of quality of the care offered to patients.

After she was removed from the contract, Ms McTigue launched ET proceedings against the Trust, claiming that she had been victimised for making a protected disclosure.

Under Section 43K(1)(a) of the ERA, the statutory protection available to whistleblowers applies to a worker supplied to an end user by a third party where the terms on which they are engaged to work are substantially determined not by the worker but by the organisation for which they work, by the third party or by both of them. The ET struck out Ms McTigue's claim on the basis that Tascor, not the Trust, was her employer because it had decided the majority of her contractual terms. In the ET's view, the Trust emphatically did not 'substantially determine' the terms on which she worked.

In upholding her challenge to that decision, the EAT found that the ET had erred in law. It had erroneously focused on which entity determined the substantial terms on which Ms McTigue was engaged to work when it should have focused on whether the Trust and Tascor had both substantially determined the terms, even if to different extents. The EAT held that the Trust was her 'employer', and that she was its 'worker', within the extended meaning given to those words by Section 43K(1)(a).

Noting that the provision was enacted primarily to protect agency workers provided to an end user in circumstances such as this, the EAT found that Tascor, as supplier, and the Trust, as end user, each had a substantial role in determining the terms on which Ms McTigue was engaged to work at the centre.

In order to assist in dealing with these issues, the EAT went on to set out the questions to be addressed by the ET when determining whether an individual is a worker within the meaning of Section 43K(1)(a).

The case was sent back to a different ET to be heard afresh in accordance with the EAT's ruling.

Individuals Personally Liable for Whistleblowing Dismissal, Court of Appeal Rules
In a landmark judgment, the Court of Appeal confirmed that individual managers can be held personally liable for dismissal in whistleblowing claims (Timis and Another v Osipov and Another).

The case concerned the former CEO of an oil exploration company who succeeded in an unfair dismissal claim against his former employer. His claim that two of the company's directors who had played a key role in the decision to dismiss him had subjected him to detriments for making protected disclosures was also upheld by an Employment Tribunal (ET).

That ruling was later confirmed by the Employment Appeal Tribunal and the company and the two directors were found jointly and severally liable to pay the man more than £2 million in damages. In challenging that decision, the two directors argued that it had not been open to the ET to award compensation against them, as individuals, for the losses occasioned by the man's dismissal as a dismissal claim could only be pursued against the employer.

In ruling on their appeal, the Court noted that the issue had real importance beyond the facts of the particular case and that whistleblower charity Protect had been permitted to put forward arguments as intervener. Because the company was insolvent, a finding of personal liability on the directors' part was critical to the man's case. Although the directors had the benefit of insurance, which would cover the full amount of his claim, that would not be so in every case.

In dismissing the appeal, the Court found that it is open to an employee to bring a claim under Section 47B(1A) of the ERA against an individual co-worker for subjecting him or her to the detriment of dismissal. As the directors had been party to the decision to subject him to that detriment, their personal liability was established. The Court also found that, if a whistleblower is subjected to a detrimental act by a co-worker and that act results in dismissal, then losses arising can be recovered from the co-worker personally.

Where whistleblowing was a significant motivating factor behind the decision of an officer of a company to instigate a claimant's dismissal, the claimant may consider it worthwhile bringing not only a claim against the employer for automatic unfair dismissal but also a claim for detriment leading to dismissal against the individual behind the decision to dismiss, for whose actions the employer may be vicariously liable.