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Thompsons Solicitors Scotland
Thompsons Solicitors Scotland

BBC News reported recently on the story of Jonathan Taylor who was a whistle-blower in 2012, when he revealed corruption within SBM Offshore, a Dutch multinational company, for whom he worked for a period of nine years in Monaco. The information he released led to SBM Offshore paying a £186 million settlement to Dutch authorities, with a similar settlement in the USA. After returning to Southampton and family life, he recently travelled to Croatia for a holiday when he was held on an Interpol “red notice” extradition request to Monaco, based on allegations of “bribery and corruption”. The extradition request has now been quashed by the Supreme Court of Croatia however he remains stranded in Croatia whilst a request for a European arrest warrant is made.

Mr Taylor alleges that this all stems from the disclosure he made as a whistle-blower in 2012. It conveys the extent the impact that whistle-blowing can have on one’s life. It begs the question, what protections are offered to whistle-blowers, and does the law go far enough?

History of Whistle-blowing Protection

Now enshrined within the Employment Rights Act 1996 (“ERA”) however initially implemented by way of The Public Interest Disclosure Act 1998 (“PIDA”), it is unlawful to subject someone to a detriment or to dismiss them because they have raised a whistleblowing concern in the workplace. 

The general duty incumbent on an employee that confidential information must not be disclosed has always been subject to an important common law exception, that disclosure may be justified where it is in the public interest. This important departure from the general duty can be seen in both Initial Services v Putterill 1968; where a former employee revealed to the Daily Mail that the company was involved in a price-fixing scandal contrary to the Restrictive Practices Act; and in Lion Laboratories v Evans 1985; where an ex-employee revealed systemic flaws in the reliability of a breathalyser machine in operation by the police. In both instances, injunctions to silence the former employees were refused on the grounds that the information being revealed was in the public interest.

Despite the common law exemption, there were insufficient protections in place for whistle-blowers. Following highly-publicised cases where whistle-blowers were victimised, the climate was right for the introduction of the PIDA which implemented S.43A-43L of the ERA.  The effect of this was to make it automatically unfair to dismiss workers or subject them to any detriment where they may have made a public disclosure. Helpfully, the protection is offered to “workers” rather than solely employees. This allows for further protection by explicit mention of agency workers, homeworkers, and trainees, among others.

Disclosure of information was originally protected where the worker believed, on reasonable grounds, that it tended to show one of the following: commission of a criminal crime; failure to comply with a legal obligation; miscarriage of justice; danger to health and safety; damage to the environment; or the deliberate concealment of information relating to any of the aforementioned criteria. This was until Parkins v Sodexho Ltd 2002, where the Employment Appeal Tribunal (“EAT”) held that the failure to comply with a legal obligation could cover a situation where an employee claimed that he had been dismissed for complaining to the employer that the employer was in breach of contract. This created unintentionally an automatic unfair dismissal protection when the reality of claims of this nature were better deemed as private contractual disputes. An amendment of the legislation followed putting the onus on the worker to show that the disclosure was in the public interest. No definition of public interest is given, so it is likely that this will give rise to further litigation.

Disclosure to a Proper Person

Strictly speaking the disclosure must be made to a proper person under S.43C of the ERA. A disclosure will be protected if it is made to the employer or a relevant third party, where the employer is a public body, to the relevant Minister, or to a person prescribed under by the relevant regulations, such as the Health and Safety Executive or Information Commissioner.

There are allowances for a disclosure to be made to anyone else, but only if the workers has grounds to believe that by presenting their employer with the evidence, they will be victimised or that steps may be taken to destroy or conceal that evidence; or where there is no applicable regulator to raise your concerns with directly. Factors that the Employment Tribunal will consider as to whether the worker acted reasonably in deciding who to make the disclosure to will include: the identity of the recipient of the information; the seriousness of the failure that is revealed by the disclosure; the likelihood of the recurrence of the failure; and whether or not the worker has complied with the internal policy of their employer. Disclosure to the media is likely to be regarded as unreasonable except in the most extreme or volatile situations.

Bringing a Claim

In order to succeed at an Employment Tribunal, a worker will have to show three things in order to qualify for protection:

1.    That he or she made a disclosure

2.    That they followed the correct disclosure procedure

3.    That they were dismissed or suffered a detriment as a result of making the disclosure.

Where a worker raises an unfair dismissal claim arising from circumstances where a disclosure has been made, the Employment Tribunal has powers to impose a reduction in an award to a worker of up to 25% where the Tribunal forms the view that the disclosure was made in bad faith.

What is a detriment?

There is no clear definition of what will constitute a detriment. It may include demotion, reduction in wages, being side-lined at work, no work being given to you, finding yourself left out of meetings or being ignored by your colleagues, or your employer may have brought disciplinary action against you unfairly.

The Approach of the Employment Tribunal

Workers have a right not to be subjected to a detriment for making a protected disclosure and dismissal or selection for redundancy on these grounds is automatically unfair. As with other automatic unfair dismissal situations, there is no qualifying period of employment for this right, meaning a whistle-blower, in theory, is protected from day one. There is also no cap on the limit of compensation which can be awarded. There are a couple of anomalies on this subject. The first is that the detriment has to be on the grounds that the worker has made a protected disclosure; whilst dismissal is only protected if the reason for the dismissal was for the sole or principal reason of the disclosure being made. When considering the decision making process of the employer, the Court of Appeal in Feccit v NHS Manchester 2012 declined to implement the but-for test, that but-for the disclosure, the employer would not have reached the decision they arrived at.  Instead, the Court of Appeal took the approach of whether the disclosure was a “material factor” in the employer reaching their decision.

Room for Reform?

It is apparent that protections do not extend far enough for whistle-blowers. Even in recent years there have been various disclosures made which have led to scandals. Wikileaks, Grenfell and Carillion to name but a few. The legislation as it stands only implements protection for a whistle-blower after they have made a disclosure and if they can then prove they suffered a detriment. This puts the burden of proof squarely on the whistle-blower. Further protections must be considered to protect whistle-blowers generally, prior to their subjection to a detriment. Preventative protections prior to a disclosure would provide the safety to a worker to step up and “blow the whistle”. This approach in future legislative reform would enshrine that we are moving towards “speak up” workplaces and away from “listen up” employers.

Westminster would appear to be listening. There is due to be second reading this year on the Public Interest Disclosure (Protection) Bill 2019-2021 which seeks to extend protection available under the PIDA and ERA. A recent report published by the UK Government on fraud and corruption within local Government procurement expressed the fundamental role of whistle-blowers in identifying and deterring fraud. Without such interventions, the corruption would simply not be brought to light. Despite the recognition by the UK Government of the vital impact of whistle-blowers, there were no recommendations for reforms of the existing legislation to advance the protections afforded to whistle-blowers.

Blog by Conor Kenny, Solicitor

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