Law and Labour » whistleblowing

Complaints lacked sufficient facts to be whistleblowing disclosures

Law and Labour — Wed, 04 Jul 2018 13:52:29 +0000

A recent case from the Court of Appeal is a cautionary tale for any employees thinking of trying to retrospectively dress up complaints as whistleblowing disclosures. The decision shows that a statement is likely to fail to be considered a disclosure that qualifies for protection under the whistleblowing legislation unless it contains sufficient facts and identifies relevant failings.

Background

The claimant in the case, Ms Kilraine, worked at the London Borough of Wandsworth as an advisor teacher. Between 2005 and 2010 she made a number of complaints. She subsequently alleged that her statements were disclosures that qualified for protection under the whistleblowing provisions of the Employment Rights Act 1996. The employment tribunal disagreed and struck out three of Ms Kilraine’s four allegations of protected disclosures.

Appeal

By the time the matter came before the Court of Appeal, the focus was on two disclosures made in 2009 and 2010. Wandsworth disputed that either statement disclosed any information. It said she had merely made allegations.

The Court of Appeal found that the concept of “information” envisaged by the whistleblowing legislation is capable of including “allegations”, and that there should not be a strict dichotomy between the two terms. The Court noted that despite this finding not every statement involving an allegation would constitute information. The statement needed to have sufficient factual content and specificity to be capable of meeting the legislative test of a qualifying disclosure.

The legal test for a qualifying disclosure requires the statement to be a disclosure of information that in the reasonable belief of the person making the disclosure tends to show one or more of the following:

that a criminal offence has been committed, is being committed or is likely to be committed, that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, that a miscarriage of justice has occurred, is occurring or is likely to occur, that the health or safety of any individual has been, is being or is likely to be endangered, that the environment has been, is being or is likely to be damaged, or that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. Ms Kilraine’s appeal failed when the Court decided that neither the 2009 nor the 2010 disclosure contained sufficient factual content to amount to a qualifying disclosure. The Court further found that Ms Kilraine could not prove that she had any one of the six whistleblowing failings listed above in mind when she made her statements.

CASE Karen Kilraine v London Borough of Wandsworth, Court of Appeal, 21 June 2018

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Should the Tribunal have awarded a worker compensation for the stigma of being a whistleblower?

Law and Labour — Mon, 17 Aug 2015 14:27:38 +0000

Possibly, depending on the facts of the case, the Employment Appeal Tribunal (EAT) has decided. However, the question of whether the worker should have received compensation for the stigma associated with being a whistleblower was not raised when the matter was heard at the Employment Tribunal and the EAT decided that it was not a matter that it could properly consider. The appeal was accordingly dismissed.

The worker in question, a Mr Small, had worked at an NHS Trust for two months before being dismissed after he raised whistleblowing concerns about unsafe working practices. He brought a claim at the Employment Tribunal in which he argued that he had been unfairly dismissed for making the whistleblowing disclosure. The Employment Tribunal agreed and awarded him compensation for loss of earnings and injury to feelings as well as aggravated damages.

Mr Small appealed the decision regarding the size of his compensation to the EAT. He felt that the circumstances of his dismissal caused him a disadvantage in the labour market. He explained that following his dismissal by the Trust, he had struggled to find a new post. He had applied for more than 600 jobs but had only found temporary employment. He noted that part of the reason for his difficulty was the Trust’s failure to provide him with a satisfactory reference. This argument had been accepted by the Tribunal who had awarded Mr Small £5,000 in aggravated damages for this failing by the Trust.

At the EAT, Mr Small argued that the Tribunal should have included in his compensation for loss of earnings an amount to reflect the stigma of being a whistleblower. However, he had not previously made this argument when his claim was heard at the Tribunal. The EAT felt that, without the claimant arguing the point before the Tribunal, it could not be expected that the Tribunal would see the need to award damages for difficulties on the labour market arising as a result of a discriminatory act or dismissal because such situations are rare.

The EAT decided that in order to make an award for stigma loss the Tribunal would have had to have made a careful examination of all the evidence to see whether such an award was warranted. Although some examination of Mr Small’s present situation had been made by the Tribunal, further enquiry would have been necessary before a decision could have been made. The EAT felt that it could not make a decision on stigma loss itself.

Mr Small’s appeal accordingly failed.

CASE Small v The Shrewsbury and Telford Hospitals NHS Trust, Employment Appeal Tribunal, 7 August 2015

Whistleblowing appeal succeeds due to Tribunal errors

Law and Labour — Mon, 13 Jul 2015 16:27:15 +0000

The Employment Appeal Tribunal (EAT) has allowed a whistleblowing claim to be reheard because the Employment Tribunal which heard the case made several important errors of law in arriving at its decision.

Background

Executive & Business Aviation Support Ltd (EBAS) was a small company with just three employees, one of whom was the claimant Maria Schaathun. For most of her employment, Ms Schaathun was in a relationship with the company’s managing director, Mark Abbott. Between December 2008 when the relationship ended and July 2009 when EBAS dismissed Ms Schaathun, she made a number of whistleblowing disclosures to various parties, including HMRC, firms of solicitors, the Civil Aviation Authority and the Environment Agency as well as Mr Abbott.

The claim

Following her dismissal, Ms Schaathun brought a claim for automatic unfair dismissal in which she argued that she had been let go because of the whistleblowing disclosures. EBAS responded that the reasons for Ms Schaathun’s dismissal were redundancy and the breakdown of her relationship with Mr Abbott.

The Employment Tribunal decided that Ms Schaathun had been unfairly dismissed, but not for whistleblowing reasons. It found that the reason for her dismissal was the breakdown in the relationship between her and Mr Abbott. She appealed the decision to the EAT.

EAT’s decision

The EAT allowed Ms Schaathun’s appeal and found that the Employment Tribunal had erred in law regarding several significant aspects of the claim. Among the errors of law made by the Tribunal were:

Failing to establish whether Ms Schaathun had made qualifying disclosures to a legal advisor or to a prescribed person in accordance with the procedure stipulated in the whistleblowing legislation. Striking out qualifying disclosures because the Tribunal felt Ms Schaathun had not told Mr Abbott about them and therefore they had not become protected disclosures. Striking out protected disclosures because Ms Schaathun had not demonstrated that Mr Abbot had been aware of them so they could not have been the reason for her dismissal. Requiring Ms Schaathun to show that the reason for her dismissal was the protected disclosures.

During the appeal hearing, the EAT considered whether the employment judge had improperly prevented Ms Schaathun from cross-examining Mr Abbott about transcripts of phone conversations she had with him. The EAT stopped short of finding that the employment judge’s behaviour amounted to bias, but noted that it came close. During the course of the hearing the judge had given Ms Schaathun two costs warnings, pointed out that the claim could be struck out and made evident his irritation with her handling of cross-examination. Despite this, the EAT found that Ms Schaathun had not been disadvantaged by not being permitted to cross-examine Mr Abbott on the transcripts because they had not contained any evidence that Mr Abbott had been aware of Ms Schaathun’s protected disclosures.

“In light of our conclusion that the ET erred in law in a number of important respects in other decisions reached by them and having regard to our concern about the conduct of the proceedings and the overriding objective of dealing with cases justly, we set aside the [...]

New whistleblowing Code of Practice for employers

Law and Labour — Sun, 29 Mar 2015 10:36:43 +0000

The Government has published a code of practice for employers on how to handle whistleblowing disclosures. The code recommends that employers:

have a whistleblowing policy that staff are made aware of and which is easily accessible to all; provide staff with training on how to raise disclosures and train managers on how to deal with disclosures; avoid “gagging clauses” in settlement agreements to prevent staff from making disclosures in the public interest; identify who staff should approach if they want to raise a disclosure; reassure staff that they will not face any detriment for making a disclosure; protect the identity of workers who make disclosures; provide feedback on disclosures raised; and commit to handling disclosures appropriately, consistently, fairly and professionally.

The guidance can be accessed at the following link: http://bit.ly/1ECl2Gd.

Freedom to speak up in the NHS

Law and Labour — Sun, 08 Mar 2015 09:28:28 +0000

The long-awaited report on whistleblowing in the NHS was published on 11 February 2015. Freedom to Speak Up summarised the findings from the review spearheaded by Sir Robert Francis QC.

The report confirms that many NHS staff are afraid to raise whistleblowing concerns because they fear it would have a negative impact on their career. Staff also lack faith in the whistleblowing system and feel it is futile to raise concerns as they would not be dealt with.

The report lists several action points built around five overarching themes of:

culture change, improved handling of cases, measures to support good practice, particular measures for vulnerable groups, and extending legal protection.

Key proposals:

Freedom to Speak Up Guardian – Each NHS organisation should appoint a Freedom to Speak Up Guardian so staff know to whom concerns should be reported. Independent National Officer – This role would effectively oversee the administration of the whistleblowing process in the NHS by acting as a support for the Freedom to Speak Up Guardians, reviewing the handling of concerns raised by NHS staff and providing advice to NHS organisations where they have failed to follow good practice in their handling of whistleblowing concerns. Better training – Staff should be provided with face-to-face sessions on how to raise concerns and how to receive and act on any concerns raised with them. Legal amendments – More NHS bodies should be made ‘prescribed persons’ to whom protected disclosures can be made. Discrimination legislation should be amended so that known whistleblowers are protected from discrimination when applying for jobs.

The response to the Francis Report has been immediate. One of the report’s recommendations was that the scope of whistleblowing legislation be extended to include student nurses and midwives. The Government has announced new legislation coming into force from 6 April 2015 that will allow these staff to receive whistleblowing protection.