In the final instalment in our series of articles looking at whistleblowing claims, we look at types of whistleblowing claims and their potential remedy at an employment tribunal.
Previously we looked at what amounts to a protected disclosure, how clear and effective policies in place helps employers to handle protected disclosures and the handling of complaints confidentially and/or anonymously. Now we consider what could happen if a whistleblowing employee feels mistreated or is dismissed after making a protected disclosure.
The Employment Rights Act 1996 provides two types of protection for employees who have made a protected disclosure:
1. Protection from detriment
An employee or worker (the latter having fewer statutory rights) can bring a claim against their employer if they have been subjected to detriment as a result of making a protected disclosure. This does not include dismissal.
The claim can be brought against an individual who caused the detriment and against the employer under vicarious liability. An employer may be able to defend a claim if it can show that it took all reasonable steps to prevent detrimental treatment.
What is detriment?
Detriment is not a defined term, but we know from case law that the detriment must show a disadvantage and that it is not enough for the employee to have simply an “unjustified sense of grievance”. The Whistleblowing Commission Code of Practice provides examples such as failure to promote, denial of training or bullying and harassment. Detriment must be something suffered “in employment” and does not cover anything suffered in a worker’s private life.
Causation and burden of proof
In a claim for detriment the employee must prove that they first made a protected disclosure and that following that disclosure, they suffered detrimental treatment. There must be a causative link between the disclosure and the detriment. The disclosure must be the core reason for the treatment and not just be related to the disclosure. It is enough for the tribunal to find the protected disclosure “materially influenced” the employer’s mindset and resulting treatment of the whistleblower.
The burden will be on the employer to prove that the reason for any potentially detrimental treatment was not because of the disclosure but due to another acceptable reason. If the employer is unable to provide a suitable reason for the treatment, the tribunal is entitled to infer that the detriment was on the ground that the worker made a protected disclosure. This burden on the employer makes it ever more important to keep paper trails of any actions or decisions that are made and to make sure that managers are sufficiently trained to avoid making snap decisions.
2. Automatic unfair dismissal
Employees – but not workers – shall be regarded as automatically unfairly dismissed if the reason or principal reason for the dismissal is because they have made a protected disclosure. The employee will not be subject to the usual qualifying service requirement and will be able to bring a claim with less than two years of service. This is unlike a claim for ordinary unfair dismissal where employees need at least two years of service.
It has proven more difficult for claimants to succeed with an unfair dismissal claim than with a detriment claim simply because there is a higher bar to show that there was a causal link between the disclosure and the dismissal. It must be the main reason, not just a part of the reason that led to the dismissal.
An employment tribunal will closely consider the decision-making processes of the employer or relevant manager, their mindset at the time, and whether they knew about the protected disclosure or not. It is another reason for employers to hold a clear paper trail on a dismissal – plus any whistleblowing complaint – as this will help to evidence the genuine factors taken into consideration leading to the dismissal.
Employees who have made a protected disclosure and who also resign in response to a fundamental breach of contract by the employer may also be able to claim constructive dismissal that was automatically unfair. If a tribunal is satisfied that the employee has been constructively dismissed, they will then consider the stages of automatic unfair dismissal too. This highlights the importance of communication and any actions taken by employers throughout a whistleblowing investigation. This helps to prevent an employee from feeling ignored and claiming that there has been a breach by the employer for failing to deal with the whistleblowing complaint.
In the event of a dismissal, an employee can apply for interim relief if they act quickly enough. Applications must be made within seven days of the date of termination and will result in both parties attending a hearing, resulting in legal fees being incurred at an early stage. Relief may be granted where the tribunal believes that the employee is likely to succeed with their claim. An employer may be asked to reinstate or re-engage the employee if possible. If not, the employer will need to continue to pay the employee as if they were employed until the matter has concluded.
Successful detriment and automatic unfair dismissal claims can be very costly to employers and there is no upper limit on the amount of compensation that can be awarded to employees.
Awards for detriment claims are assessed on a similar basis to discrimination claims and may include an award for injury to feelings using the Vento guidelines, currently ranging from £900 to £45,600. The tribunal will take into consideration the seriousness of the detrimental action and the impact this had on the employee.
Claims for automatic unfair dismissal will be awarded by calculating the basic award – similar to the calculation for statutory redundancy pay – plus a compensatory award determined by loss of earnings and future losses as well as a potential stigma attached to the employee. Both types of awards can be uplifted if there has been a breach of the ACAS Code of Practice on Disciplinary and Grievance Procedures. It is clear that whistleblowing claims have the potential to be costly for an organisation and employers are well advised to handle any disclosures of information carefully.