So you think you’ve blown the whistle and the boss is mad, now what?

When an individual makes a protected disclosure (aka ‘blows the whistle’) they should not be subjected to a detriment or dismissed as a result. This article explores when ‘whistle-blower’ protection can be relied on by an employee or worker.

Summary of Whistleblower Protections

The Public Interest Disclosure Act 1998 (PIDA) creates two levels of protection for whistle-blowers. Neither employees nor workers should be subjected to any detriment on the ground they have made a ‘protected disclosure’. In addition, if an employee is dismissed because they made a protected disclosure (or the protected disclosure is the principle reason for their dismissal), such dismissal will automatically qualify as an unfair dismissal.

For employers, potential whistleblowing claims are of particular concern as there is no financial cap on the amount of compensation which may be awarded and no requirement for a minimum period of service before a claim can be brought.

Whether a whistle-blower qualifies for protection under PIDA depends on them satisfying the following tests:

(1) Have they made a qualifying disclosure? This means:

• they have actually disclosed the information (threating to make a disclosure or gathering evidence is not sufficient)
• the information disclosed relates to one of six ‘relevant failures’
• they have a reasonable belief that the information shows the relevant failure
• they have a reasonable belief that disclosure is in the public interest

(2) Is it also a ‘protected disclosure’? This means:

• the disclosure has been made to an appropriate person/body as defined by PIDA.

In this article we focus on two issues which are commonly misunderstood and/or where there are subtle distinctions, namely when an allegation amounts to a disclosure of information and when a detriment occurs.

To help clarify this particularly complicated area of law, we have used a hypothetical example to help illustrate these points.

Setting the scene

A new prime minister has been elected and has appointed a new cabinet following what has become colloquially referred to as the “midsummer massacre”. You have been employed as the interior minister by the new home secretary. Since then the prime minister has made many public statements about contentious issues and there are growing concerns in some circles that he will use any means necessary to carry through his election promises.

A few months down the line and the prime minister is forced to call a general election before he can push through his agenda and you have become aware of some questionable (both morally and legally) instructions from the office of the prime minister concerning the conduct of the election process. You feel obligated to report your concerns but memories of the ‘massacre’ are a legitimate cause for concern, what are your options?

When will an allegation amount to a disclosure of information?

Whilst in the office you went to collect some printing from the communal printer and noticed someone had left some copies of email chains between the prime minister and the new home secretary which suggest that the prime minister intends to rig the general election. Although you do not know the specific legal obligation this would be a breach of, you genuinely believe he would be acting in breach of a legal obligation or even committing a criminal offence. You have identified the best person to email regarding your concerns and simply need to decide what exactly to tell them. On the one hand you do not want to say too much in writing, on the other you want to have the benefit of whistle-blower protection. You have two emails in mind, either:

1. Simply state that you believe the prime minister is acting in serious breach of legal obligations/committing a criminal offence and asking for a meeting to discuss; or
2. Send the same email, attaching a copy of the email chain you found. 

It has long been established that a whistle-blower must disclose information and not just make an allegation in order to enjoy the protection under PIDA. However, there was confusion as to whether a disclosure could only be either an allegation or information, or if it could be both. 

In the above example, option 1 is unlikely to amount to disclosure of information as it only makes an allegation, but includes no specific details or facts. Until the case of Kilraine v London Borough of Wandsworth [2018] (Kilrane), you might have even struggled with the second email. However, in Kilrane, the court of appeal confirmed there is no rigid dichotomy of information and allegation. In fact an allegation in certain contexts can amount to information. The second email is very much like the example given in Kilrane showing when context could turn an allegation into information. The example in Kilrane was of a worker who gestures towards some sharps on the floor whilst stating that the hospital is in breach of health and safety obligations. The statement itself would not be enough, but taken with the gesture towards the sharps would clearly include a reference to factual matters ie information. In our second example, the body of the email sent by the employee would not be enough, however with the attachment this would provide factual context and it would likely meet the requirements as a disclosure of information.

Detriment or Dismissal?

Following receipt of your email, the recipient decides not to investigate further and instead decides your employment at the department needs to come to an end. He is not your direct line manager and cannot himself terminate your employment. Instead, he makes several false allegations of serious misconduct to your line manager and following an investigation your line manager summarily terminates your employment. Unfortunately, the line manager concerned had no knowledge of your disclosure when she decided to terminate your employment and in the circumstances the investigation and decision reached were reasonable.

Until the end of last year this type of scenario would have left you in a less than desirable or fair position. In the 2017 case of Royal Mail Ltd v Jhuti it was held that if the decision to dismiss is made by a line manager who is ignorant of the true facts and manipulated by another, their decision cannot be attributed to the employer and therefore the dismissal will not be automatically unfair. You would then have been left with only a possible claim for detriment against the individual who made the false allegations, however you could not bring a claim against the individual in relation to your dismissal as under section 47(B)(2) of the Employment Rights Act 1996 you could not bring a claim for detriment where the detriment amounts to dismissal.

However, late last year, the case of Timis v Osipov (Timis) confirmed that the limitation in section 47(B)(2) only prevents the individual from making a claim against the employer for detriment in relation to its own act of dismissal. In the case of Timis, a non-executive director instructed another non-executive director to dismiss the individual, therefore the requisite knowledge for the person who made the decision to dismiss was not there to enable a claim to be brought against the employer. However, the affected individual in the case was able to claim against both of the non-executive directors directly for subjecting them to the detriment of dismissal.

Following Timis, it is now common practice for an individual alleging detriment and/or automatically unfair dismissal following a protected disclosure to bring a claim against both the employing company and the individuals who subjected them to a detriment. Although, in Timis the individual particularly wanted to include the individuals because the company involved was insolvent. From a tactical point of view, even if in reality recovering losses from the individuals may not be possible (eg if they do not have the funds to pay an award) it can make it practically difficult for a company and the individuals concerned to coordinate their defence and can lead to competing interests.

Where is this heading?

Historically, making a claim as a whistle-blower for detriment or automatic unfair dismissal has been hard as there have been various technical requirements or limits to the whistle-blower protections and generally it has been difficult to show that the reason for the dismissal was the individual’s protected act.

However, this is an increasingly topical issue and both domestically and abroad governments are looking to strengthen whistle-blower protections. Case law, such as those outlined above, has already broadened the possibilities for individuals and more statutory changes are also expected in the not too distant future.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.