Blowing the whistle: a tricky business

I have to confess that one of my guilty pleasures is a good old whistle blowing scandal and I have certainly taken quite an interest in some of the more famous cases, many of which have been portrayed in films over the years – Karen Silkwood was played by Meryl Streep in a movie following her mysterious death in 1974 in the midst of a campaign to challenge Kerr-McGee about the safety of a nuclear facility.  Similarly Al Pacino played Frank Serpico, a New York City Police Officer who attempted to confront the corruption within the Police Department.  More recently Matt Damon played Mark Whitacre in The Informant – Whitacre worked with the FBI to expose price fixing in agriculture by his own company, Archer Daniels Midland.  And of course we are all familiar with the story of Linda Tripp, a former member of staff at the White House, who was a key player in exposing the Monica Lewinsky scandal that led to an attempt to remove Bill Clinton as President.

Of course, not all whistle blowing cases are quite as famous or are made into movies but the subject is certainly one that can be difficult for employers to navigate.

Our expert legal partner, Sally Nesbitt of Pennington Manches LLP, has shared some of her insights on a recent case with us:

We often hear stories in the press about ‘whistleblowers’ and the poor treatment which they have received from their employer after having raised the alarm about malpractice in their workplace. If, for example, an NHS nurse challenges poor standards of care in a hospital, I think most people would agree that the nurse should be protected against being poorly treated by her employer after she raises that concern.

Since 1998 we have had laws in place which do protect employees against suffering a detriment or being dismissed as a result of ‘blowing the whistle’. Over time, that law has been expanded and interpreted in such a way that it ended up protecting employees in a much broader range of situations than parliament would probably have intended when they put the legal protection in place. It got to a point where if an employee accused their own employer of having breached their employment contract, that alone could attract the protection of the ‘whistleblowing’ legislation.

For many, this was a step too far. The legal protection for whistleblowers came from a piece of legislation called the “Public Interest Disclosure Act”. Many people held the view that there should therefore be some ‘public interest’ element to the concerns being raised for an employee to be protected. Surely a private individual raising a concern about his own contract of employment, which has no element of ‘public interest’ shouldn’t have been covered?

In 2013 parliament took steps to address this situation and made amendments to the whistleblowing legislation. Whistleblowers are now only protected if they have a “reasonable belief” that they are raising their concern “in the public interest”. Parliament’s intention when making this change was to prohibit those employees who were merely raising concerns about their own private employment contract from being protected as a whistleblower.

Since that change to the law, we have been waiting to see exactly how the new wording would be interpreted by the employment tribunals. The recent case of Chesterton Global v Nurmohamed has finally given us some guidance.

In this case a senior employee raised his concerns to his employer about alleged manipulation of his employers finances which would mean that he, and around 100 other senior staff, would not receive as much commission as they may have been expecting. His employer didn’t appreciate his allegations and subsequently dismissed him. He brought a claim in an employment tribunal alleging that he had been unfairly dismissed as a result of having ‘blown the whistle’ on his employer’s alleged financial malpractice.

The key question which the Employment Appeal Tribunal had to address was how to interpret the new legal test and whether the employee in this case should be protected under the new regime.

Happily for Mr Nurmohamed, the tribunal found in his favour. There was a lot of discussion in the case around whether the 100 employees who may have been affected by the issue was a big enough grouping to amount to a matter of ‘public interest’ but ultimately the tribunal decided that such a point was irrelevant. In fact, it didn’t even matter if the issue being raised by the employee did not, in fact, have any public interest. All that the employee had to show was that at the time he raised his concerns, he had a reasonable belief that he was raising the matter which he was reporting in the public interest. That, it seems, is a significantly easier hurdle to overcome than some people may have expected.

So, it seems that parliament’s intentions for this legislation have, at last, been achieved. If you’re an employee complaining to your own employer about a matter which will only affect you personally, then you won’t be a ‘whistleblower’, but if you are raising concerns which may affect others, then you can (rightly, in my view) expect to be protected by the law if your employer doesn’t take kindly to your intervention.

Sally Nesbitt
Partner, Employment Department
Sally.Nesbitt@Penningtons.co.uk

 

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So what can you do as an employer to protect yourself:

  • Ensure you have a comprehensive whistleblowing policy in place and familiarise staff and managers with your policy to ensure that disclosures are dealt with appropriately.
  • Keep track of any comments or grievances raised. Remember, concerns raised in separate correspondence may not amount to a qualifying disclosure when viewed in isolation, but may well do so when viewed together
  • Consider carefully whether or not an individual’s concerns may be a qualifying disclosure within the UK whistleblowing laws.
  • Ensure any qualifying disclosure is dealt with carefully under your whistleblowing procedure. Where a disclosure is protected a worker has a statutory right not to be subjected to a detriment and any resulting dismissal will be automatically unfair. To bring an unfair dismissal claim, an employee does not need to satisfy the two years’ service requirement and the compensation that may be awarded if successful is not subject to the statutory cap.

And if in any doubt; talk to an expert like Sally; as she says it’s certainly a tricky business.

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