Whistleblowing - an Accusation is not enough

As businesses are beginning to pick up from where they abruptly left off eight weeks ago and the new social distancing regime comes into play in the workplace it is highly likely that there will be attempts to cut corners and in some cases employees may be asked to work in circumstances that they are fully aware contravenes the law. Some employees will not be prepared to close their eyes and ignore the breaches. The law is clear and the Employment Rights Act 1996, which protects employees from raising issues – whistleblowing - allows employees to report issues such as a criminal offence, a health and safety violation, risk or damage to the environment, or a miscarriage of justice, without being treated unfairly or losing their job; the wrongdoing reported must be deemed to be in the public interest.  

Giambrone’s employment law team frequently deals with employees who have made a protected disclosure (whistleblowing) which has resulted in the loss of their job.  Daniel Theron, a partner, commented “realistically, the employee who blows the whistle is frequently treated unfairly and dismissed or driven out of the workplace, which could amount to unfair or constructive dismissal.” He further remarked “there is a difference between allegations and information and it is vital to establish whether the employee can have been said to have made a protected disclosure as opposed to simply making an allegation that some regulation has been contravened.”   

The general rule with employment claims is that a qualifying period of two years of service is required for an employee to file a claim at an Employment Tribunal for unfair dismissal or constructive dismissal. However the Employment Rights Act 1996, contains a few exceptions to this rule, which will be further explained.

The act contains several requirements for a whistleblowing claim to be successful. Merely stating that a regulation has been breached would not be sufficient, further substance is required.  The Employment Rights Act 1996 recognises that there can be a distinction between an "allegation" and "information". The example often referred to in Tribunal decisions, is where a hospital worker brings a manager down to a particular ward in a hospital. Communicating information would be "The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around", whilst gesturing to the sharps.  Contrast the above with an accusation or statement, "You are not complying with Health and Safety requirements". In the Tribunal’s view this would be an allegation not information. The complaint has to contain sufficient factual content and specifics capable of showing one of the relevant types of wrongdoing has taken place. An accusation on its own without information would not be sufficient for the purpose of satisfying the burden of proof.

Frequently the individual making the protected disclosure often works at a high level in a large organisation which values its reputation and will initially attempt to use robust tactics to steer the complainant away from public disclosure. The preferred route is a negotiated exit with a settlement and an uncompromising non-disclosure agreement in place to prevent any knowledge of the infringement becoming public knowledge. 

For more information about making a claim for constructive dismissal or unfair dismissal please click here