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How to avoid unfair dismissal claims when employees “blow the whistle”

Blowing the Whistle

There have been a number of high profile whistleblowing cases in the media recently, with disclosures being reported across different industries, from sexual harassment, to malpractice in the NHS. A number of these cases have been scrutinised for the poor treatment of whistleblowers, and the incorrect use of non-disclosure agreements to keep them silent.

Negative attitudes towards whistleblowing are destructive, and can have costly consequences in an employment tribunal setting. In case you’re wondering what whistleblowing means to you as an employer, here is a quick refresher on how it can impact your business.

Whistleblowing occurs when your company is doing something that they shouldn’t, such as fraud or breach of health and safety, and one of your employees reports it (perhaps to someone senior in the company or to the police). What you do next as an employer is very important, and it is crucial that the employee feels supported, and does not experience negative consequences for blowing the whistle. If a whistleblower is victimised at work or fired because of having blown the whistle, and their disclosure complies with the terms of the Employment Rights Act 1996 (as amended by the Public Interest Disclosure Act 1998), your employee can take the company to an employment tribunal.

If a Tribunal finds that the employee was dismissed because of a disclosure that is covered by the Act, then that dismissal is automatically unfair and they would be entitled to compensation.

Whistleblowing at Tribunal

In the recent case of City of London Corporation V McDonnell the Tribunal had to consider whether Mr McDonnell’s dismissal was as a result of his whistleblowing which would have made it automatically unfair.

Mr McDonnell was a senior surveyor whose role involved managing the use of various City of London Properties, which included Leadenhall Market.  It was alleged by his employers that he had acted unprofessionally and been obstructive when dealing with managers and clients in exercising his duties.  In response, he made a number of whistleblowing disclosures about Councillors and managers, in particular alleging fraudulent activity and political interference.  It is likely to be relevant that he made the disclosure in reply to the allegations against him, rather than as a free standing act.

There followed an investigation into his allegations, some of which were found to be true, but many were not.  He was later dismissed for gross misconduct in relation to the original allegations that had been made against him and issued tribunal proceedings claiming that the real reason that he had been dismissed was because of his whistleblowing.  The Tribunal agreed with Mr McDonell, but his employers took the matter to the Employment Appeal Tribunal (EAT) who disagreed.

The Appeal

Although there were a number of reasons why the EAT disagreed with the Tribunal, the most significant one was that there had to be clear findings as to the specific disclosures made, so that the employer knows what case it has to meet.  As that did not happen in this case, the EAT sent the claim to a new Tribunal for the case to be reheard.

What you can do to protect yourself

The obvious answer would be – don’t do anything wrong, because then no one will have anything to blow the whistle about. The reality is that you can’t know what everyone’s doing all of the time and there’s always the risk that, no matter how honourable you are, there will be someone in your organisation doing something you wouldn’t approve of.  Additionally, even if you’re confident that you’re doing everything correctly, one of your employees may disagree and take action, so you still need to protect yourself against mistakes and misunderstandings.

To do so, make sure that you have policies and procedures in place, and ensure that these are followed by everyone in your company. Robust whistleblowing policies reinforce an open, supportive company culture, where employees feel safe to raise their concerns, in the knowledge that they will be supported and will not suffer any negative treatment as a result. The more guidance and guidelines you can make available for your staff, the less likely it is that a claim will be made, and the greater the chances are that you will be successful if you are facing a claim. This is because you will have taken careful steps to deal with disclosures properly.

So that you can ensure your managers know how to correctly deal with a disclosure, you might consider if they could benefit from training to feel confident in their actions if the situation arises. The Government has also produced excellent resources for employers on how you can prepare for whistleblowing that you can read here.

The importance of trust in teams

The most common factor in a whistleblowing case is the employee’s belief that they had no choice but to blow the whistle.  This is usually because he or she either believes that no one in the company will take them seriously and/or that, if they do talk to a superior, the evidence that they’re concerned about will be covered up or destroyed. Companies that encourage trust and communication between staff and management, with clear messages of trust and confidence are less likely to experience staff blowing the whistle externally. Procedures can be put in place so that staff can make disclosures in confidence, or even anonymously, to protect all those involved.

What can we do to help?

If you’re an employer and would like support with the policies and procedures you should have in place to avoid situations like these, or would like advice on managing a whistleblowing situation in your company, please contact our team on 01271 859 267 or office@fitzgeraldhr.co.uk. We would be delighted to help you.

Read more: 

Employment law updates for 2019

How to manage capability when an employee is dishonest

GOV.UK Whistleblowing Guidance for Employers & Code of Practice

The Four Stages of Employee Engagement