Blowing the whistle (and unfair dismissal)

On behalf of Attwaters Jameson Hill posted in Employment Law on Friday, December 6th, 2019

On 27 November, the Supreme Court ruled that a Royal Mail employee had been unfairly dismissed for whistleblowing six years previously. The landmark judgement overturned a previous Court of Appeal ruling stating that the appellant, Ms Jhuti, had been dismissed as a result of poor performance.

In October 2013, Ms Jhuti made a disclosure to her line manager regarding concerns that a colleague was infringing OxCom guidance and company policy. Despite later retracting the claim, Ms Jhuti alleged that she was then put on a performance improvement programme, which she believed was a direct result of her whistleblowing. She said that her manager emailed HR with false information about her performance, which was then used by the department as a basis for her dismissal.

The Supreme Court’s ruling of unfair dismissal was based on the fact that the HR department had made its decision to dismiss Ms Jhuti because of this false information – the fact that it genuinely believed there to be grounds for dismissal made no difference.


What is a whistleblower?

A whistleblower is any worker who reports certain types of wrongdoing. For the information disclosed to be classed as whistleblowing, two criteria must be met:

• The disclosure must be in the public interest (i.e. not a personal grievance like bullying or harassment). An example might be an NHS employee who reports on a failing that has put patients’ safety at risk.
• It must be a qualifying disclosure.

Qualifying disclosures are set out in the Public Interest Disclosure Act 1998 (PIDA), which updates the Employment Rights Act 1996. Whistleblowers are protected under this Act if they report any of the following:

• Criminal offences such as fraud
• Failure to comply with an obligation set out in law
• Miscarriages of justice
• Endangering of someone’s health and safety
• Damage to the environment
• Covering up any of the above categories of wrongdoing


How does the law protect whistleblowers?

Workers who make a disclosure under the PIDA are protected from dismissal or any other ‘detriment’ that results as a direct result of their whistleblowing. Detriment in this context could mean being denied promotion, for example, or being prevented from accessing training or career development opportunities. A worker can bring a claim of unfair dismissal before an employment tribunal if they believe they were dismissed because of their whistleblowing.

If the employment tribunal upholds the whistleblower’s case, they can demand re-instatement, re-employment or compensation for the worker.


How can an employer provide a supportive culture for whistleblowing?

The Department for Business Innovation & Skills advises employers to create an “open, transparent and safe working environment where workers feel able to speak up.” Whether this is through a whistleblowing policy or an internal reporting procedure, companies must create a culture that encourages employees to report misconduct and therefore enables employers to better manage and control the fallout of such a disclosure. It can also enable employers to resolve the dispute internally, whereas an employee who feels they are not being listened to or even victimised at work may take their disclosure to the media (although this almost always results in the loss of whistleblowing protection under the PIDA).


Bringing a case as a whistleblower

If you have made a disclosure and have been dismissed or victimised as a result, you may wish to bring your case before an employment tribunal. Before you do so, it is imperative to seek good legal advice from specialist employment lawyers, who can review your circumstances and advise you on whether you have a case. They will also take care of all the paperwork and support you through the court process.


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