Tribunals tend to come down heavily on employers who dismiss staff for whistleblowing – so protection is vital
This is almost a true story, with only a few changes to protect identities. It makes chilling reading. An employee in a chemicals factory realised he was not going to be kept on at the end of his six-month probationary period, so he deliberately tried to release pollutant into a nearby stream.
Luckily, the plant manager stopped the process before any harm had been done. The manager had a pretty good idea who the culprit was, but as he was only a couple of weeks away from the end of his probation he decided a disciplinary process was not worth the effort. He transferred the employee to a low-risk area and then simply let him go.
On the afternoon of his dismissal, the safety authorities turned up for a random audit of the plant. That was the one part the employee could not have planned. But, unbeknown to his employer, he had told the authorities of the near-release of pollutant. Naturally, he blamed someone else.
Safety officials came to audit the plant in the morning; the employee was dismissed in the afternoon. Pure coincidence, but he claimed he was fired because he blew the whistle. He earned £15,000 a year. The case cost £50,000 to fight and settle.
We are starting to see the effects of the Public Interest Disclose Act 1998, commonly called the Whistleblowing Act, which came into force on 2 July 1999. Some awards are very high. We have already seen an award of £293,000 in the Fernandes case and a realistic acceptance by the tribunals that being a “whistleblower” may be an impediment in the job market.
The reason these awards are so high is that compensation for dismissal for whistleblowing is unlimited. Fernandes was a senior employee with six years to retirement and the tribunal in effect ordered that he be paid until that date.
That is how the legislation works. But it may not be the only reason why the tribunals are making large awards.
In a whistleblowing case, the employee has suffered, and has usually been dismissed, because they tried to protect the public or the shareholders. If this was a Western, there is no question who would be wearing the white hat and who would be in black. Tribunals would not be human if they did not seek to punish the employer, even if that is not what the legislation says they are supposed to do.
Moreover, although the legislation says that disclosures must be made in good faith to be protected – and a malicious accusation could count as gross misconduct – that does not protect employers against unscrupulous staff. In practice, to accuse an employee of bad faith is to double the stakes.
Tribunals are wary of such accusations. Even if the employee was responsible for the conduct (as above) they can turn around and claim it was only because of pressure from their employer.
So it is vital for employers to take steps to protect themselves. The most important step is to have a whistleblowing procedure. It should set down a clear procedure for the workforce to follow. It should allocate responsibility for who they should approach to a senior person.
This means that disclosures can be dealt with internally. The employer is then much more in control.
Even so, any disclosure made under such a policy is still a protected disclosure. The employer cannot penalise the employee for making it. And the employer must follow through and deal with the issue. Otherwise, the employee can go on to make a disclosure to an appropriate outside body, such as the HSE.
• Employers must have a clear whistleblowing procedure
• Communicate it to all workers and employees
• Follow up all disclosures thoroughly
• Build a culture of openness.
Martin Chitty is head of employment at Wragge &Co