Whistleblowing disclosure employment tribunal cases – It ain’t what you do – It’s the way that you do it

…. And that’s what gets results.

This is not an article about the 1982 hit of the same name by Fun Boy Three and Bananarama, nor about whether Fun Boy Three blew the whistle on Bananarama’s breach of a legal obligation. Not least because the Public Interest Disclosure Act 1998 only came into force 16 years later.

This is a piece underlining the importance of employers knowing when to recognise protected disclosures made by employees, how they are made and what happens if you do not recognise them.

Multiple Claims

More and more claims in employment tribunals, these days, involve multiple claims. Not simply unfair dismissal claims, but unfair dismissal claims coupled with discrimination and/or whistleblowing claims. Many claimants make the argument that their misconduct, capability or redundancy dismissal was, in truth, for a discriminatory related reason, whether disability, age, gender or race, for example, or because they made a (whistleblowing) protected disclosure in the public interest.

Reasonable belief in the public interest and wrongdoings

In the case of whistleblowing the employee has to have a reasonable belief that the qualifying disclosures that they say they made in the past, were in the public interest and led to the detrimental treatment towards them by their employer or even their dismissal. Their reasonable belief must be in the public interest, not their own self-interest; and they have to show the following types of wrongdoing that:

1. A criminal offence has been, is or is likely to be committed;
2. A person has failed, is failing or is likely to fail to comply with any legal obligation, to which he/she is subject;
3. A miscarriage of justice has occurred, is occurring or is likely to occur;
4. The health and safety of any individual has been, is being or is likely to be endangered;
5. The environment has been, is being or is likely to be damaged; or
6. The information tending to show any of the above has been, is being or is likely to be deliberately concealed.

And if they cannot show that any of the above has been disclosed by them or that they have made a protected disclosure of wrongdoing but did not have a reasonable belief that such was made in the public interest, then their claims in respect of any detrimental treatment or dismissal which they allege to have occurred will not succeed.

Alleged whistleblowing case

We dealt with a case between 2021 and 2022, which highlighted the importance of the reasonable belief and public interest as being essential to any claim and also underlined how an employee can ignore an organisation’s whistleblowing policy that prescribes how disclosures are to be made and who to.

Our client was a multi-academy trust which was established in 2014. Our client required our assistance as they had received a notice of claim regarding unfair dismissal. The claimant had been TUPE transferred to our client in 2018. In July 2020 the claimant submitted a whistleblowing complaint to a trustee of the trust on the grounds of their line manager’s conduct towards him (arguing in effect that the line manager committed a breach of a legal obligation – but not identifying which one). The claimant ignored the whistleblowing policy and so the alleged disclosure did not come to light until 3 months later. After an internal investigation was conducted, the claimant was told that there was no case to answer in relation to his alleged protected disclosure. A formal grievance was then submitted by the claimant later in 2020 which related to bullying and harassment, which as the case developed evolved into whistleblowing detriment and harassment claims. The grievance was dismissed after internal investigation.

Redundancy – detriment and automatically unfair

The claimant received a potential redundancy notification, subject to consultation, in September 2020, because of the need to reduce the trust’s deficit and therefore lose 2 positions, one of which was vacant anyway and the other occupied by the claimant. After his redundancy dismissal and appeal, which was unsuccessful, the claimant brought claims for unfair dismissal challenging 1) the need to make job cuts to reduce the deficit, 2) the redundancy circumstances, 3) his selection and 4) the process. He also argued that his selection for redundancy and redundancy dismissal were whistleblowing related detriment and automatic unfair dismissal offences committed by his employer.

Defence and tactical advances

We provided advice on the time limits, the substance of the claims and the effects that whistleblowing can have if not responded to properly by an employer. We conducted extensive interviews with all those at the centre of the alleged whistleblowing disclosures and involved in the redundancy and appeal processes. This detailed forensic examination of the time line of events and factual matrix enabled us to draft an extensive defence (grounds for resistance) and a detailed chronology.

In our robust defence for our education client, we:

• Put the Claimant to strict proof that any communication from the claimant with the trustee constituted a protected disclosure;
• Argued that such (disputed as protected) disclosure as was made by the Claimant was not in his reasonable belief a disclosure of information in the public interest, but solely in his personal interests, including for his own gain and private benefit in order to extract settlement compensation from our client;
• Denied any causal link between such (denied) protected disclosures and his redundancy selection and denied that the timing of the redundancy process was influenced, in any way, by his alleged protected disclosure.

Costs warning

We warned the claimant that should he lose his claim, then we would apply for an order for our client’s legal costs be reimbursed by him, on the grounds that his claims had no reasonable or little prospects of success.

Claims thrown out

Following a preliminary hearing an Employment Judge reduced the scope of the Claimant’s whistleblowing claims to just two:

1. Accelerating his redundancy (a detriment – rather than a whistleblowing dismissal)
2. The timing of his notice of termination due to his alleged whistleblowing disclosure.

His alleged whistleblowing complaints of harassment, selection for redundancy and redundancy dismissal were all struck out by the tribunal following the submissions that we made.

This put our client in a better position to bat away the main whistleblowing claims.

What’s the message?

Any whistleblowing detriment or dismissal case such as this one, underlines the point that it is not enough for an employee to blow the whistle on their employer to try and leverage a payout of compensation. It is the reasonable belief in the public interest nature of the disclosure and the reasonable belief in the wrongdoing that an employee has to demonstrate in order to succeed in an employment tribunal claim. So its not what you do (blow the whistle) it’s the way that you do it (how and demonstrating a reasonable belief in the public interest nature of the disclosure) that gets results.

For an employer’s part, a thorough investigation into the alleged wrongdoing and whether the employee has a reasonable belief in the wrongdoing and that they are acting in the public (not private – for their own) interest, will often flush whether the disclosure is genuine or not.

If you would like further information on whistleblowing claims and how to defend them, please reach out to us at nick.hobden@ts-p.co.uk