How do you treat your Whistleblowers?

A new report, based on the research of the charity, Public Concern at Work [www.pcaw.org.uk] and the University of Greenwich (Work and Employment Relations Unit) into the experiences of 1,000 whistleblowers has been published.

The statistics reported give cause for concern:

• 60% of whistleblowers receive no response from management, either negative or positive.

• The most likely response is formal action (disciplinary or demotion - 19%).

• 15% of whistleblowers are dismissed.

• Newer employees are most likely to blow the whistle, with 39% having less than two years’ service.

• 74% of whistleblowers say nothing is done about the wrongdoing.

As you’ll know, workers who report malpractices by their employers or third parties are protected and the above statistics reveal practices which will expose employers to risks of claims against them. We don’t want you to be one of them!

So what protection do whistleblowers have?

There are two levels of protection for whistleblowers:

1. The dismissal of an employee will be automatically unfair if the reason, or principal reason, for their dismissal is that they have made a “protected disclosure”; and

2. Workers are also protected from being subject to any detriment on the ground that they have made a “protected disclosure”.

To qualify for protection, a whistleblower must satisfy the following test:-

• Have they made a qualifying disclosure? There must be a disclosure of information, relating to a “relevant failure” and the worker must have a reasonable belief that the information shows one of the relevant failures;

• Is it also a protected disclosure? This depends largely on the identity of the person to whom it is made and whether it is made in good faith.

There is no financial cap on compensation for whistleblowing claims and no requirement for a minimum period of service.

What do I need to know?

Although there is no positive obligation on an employer to encourage whistleblowing or implement a whistleblowing policy (save for certain organisations that face more scrutiny, such as public bodies), we generally recommend that employers implement a written policy on whistleblowing.

The benefits of having a policy are that it is likely to:

• encourage a culture where concerns are reported internally at an early stage so are easier to address,

• make it less likely for employees to report concerns externally to the press or third parties, and

• send a clear message of the importance of whistleblowing to the company, minimizing the risk that whistleblowers will be dismissed or suffer a detriment, which could lead to a claim against the employer.

You should be aware that there are some imminent changes to be made in this area.

Statutory provisions dealing with a new public interest test, the power to reduce compensation where a disclosure is not in good faith and the definition of “worker” will come into force this month and will apply to disclosures made from that point onwards. The new concept of vicarious liability for employees and personal liability for co-workers who victimize a whistleblower by causing detriment is to be introduced during the Summer.

This is a complex area of law and employers will not always spot potential whistleblowing when it arises. If you have any concerns regarding this or if you require further information or some help reviewing or drafting a whistleblowing policy, please get in touch.

Can the victimisation provisions of the Equality Act 2010

be relied upon post-employment?

Yes. In a recent case, the Employment Appeal Tribunal found that employees could bring claims for acts of victimisation that took place after their employment had ended.

What do you need to know?

You need to be mindful that acts, such as providing an unfavourable reference after an employee has left your employment or refusing to provide a reference (if have a practice of doing so) for employees who have brought Tribunal claims or raised grievances alleging discrimination, could give rise to a further cause of action for a discrimination claim.

However, there is a contrary decision by the EAT on this same point and the case is being appealed to the Court of Appeal - so watch this space!

Think what we wear to work is straightforward?

Think again… Eweida and others v United Kingdom [2013]

You will no doubt remember the highly-publicised case about Mrs Eweida who worked as check-in staff for British Airways. She wanted to wear a plain silver cross to work which would be visible over her uniform as a personal expression of her Christian faith. BA refused because it was contrary to its uniform policy.

In the UK, the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal rejected Mrs Eweida’s claim for indirect religious discrimination.

Mrs Eweida was one of four individuals who then took her complaint to the European Court of Human Rights in Strasbourg alleging that the UK had failed adequately to protect her right to manifest her religion enshrined in the European Convention on Human Rights.

At the start of this year, the European Court of Human Rights upheld Ms Eweida's complaint that her rights had been violated, and awarded her EUR2,000 in respect of non-financial loss (given her anxiety, frustration and distress) and EUR30,000 costs. This ruling will have a significant impact on the law in this area and the decision on the appeal of this finding is due any day now.

Along with other European case law on areas such as working time and treatment of employees for their political beliefs and affiliations, this case shows the marked impact of EU law on UK employment law.

What do you need to know?

You should consider the application of any uniform/dress code policy and think carefully before asking individuals to remove/change clothing which may be a manifestation of their religious belief. If in doubt, it would be sensible to agree requests with an employee rather than simply relying on a policy.

Your Questions Answered - UPDATE

You will remember in our April edition of Employ!, we featured a question about reliance on a sick note which cited the reason for absence as taking time off to care for the employee’s husband who has had a heart attack?

Our advice was that the HR Manager has been right to query this.

Recent guidance published by the Government on fit notes makes it clear that a fit note is not binding on an employer.

There may be occasions where an employer disagrees with a GP’s assessment that an employee either is or is not fit for work. The guidance establishes that in these situations, the employer is within its right to gather other evidence about the employee’s fitness for work from other doctors or healthcare professionals, such as Occupational Health. An employer can then choose to give this evidence precedence over advice in the fit note.

Are there any risks?

When you put this alternative evidence to the employee, then obviously he or she may refuse to come back to work and this may give rise to a dispute. If an employer relies on the conflicting evidence, it may have to demonstrate to an Employment Tribunal why the other source of evidence was believed over the GP’s fit note.

If you have any queries in relation to this problem or a question that you would like to ask the team and share with our other readers, please send it to us and we would be delighted to use it in a future edition of Employ!