Legal Q & A: New powers for whistleblowers

By Emma Grace, partner and head of employment law at Nelson &Co

Q What does the current law state when relating to whistleblowing claims?

A Whistleblowing legislation was introduced under the Public Interest
Disclosure Act 1998 (PIDA), and came into force in July 1999, to allow
employees to bring matters of public interest to the attention of their
employers – or sometimes a wider audience – without fear of losing their jobs.
Since becoming law, whistleblowing claims have had their fair share of
headlines and will be nothing new to employers.

Q So what’s changed?

A Under PIDA, any employee who makes a ‘protected disclosure’, and
follows the required procedure laid down by statute, is protected from being
treated less favourably or victimised by the company involved. One definition
of a protected disclosure of information is that it tends to show that a person
has failed, is failing, or is likely to fail to comply with any legal
obligation to which they are subject.

What is new and should be making employers sit up and take note, is the
relatively recent case of Parkins v Sodexho decided by the Employment Appeals
Tribunal (EAT) in 2001, which means this definition could be said to cover a
breach or potential breach of an employee’s own contract. This takes it outside
the public arena, and into the private one.

In this case, Parkins worked as a cleaner. One of his duties involved using
a buffing machine, and he had been told to call an off-site supervisor in the
event of problems.

Parkins claimed his employer had breached his contract and its health and safety
duty to him, by not providing on-site supervision, and complained about this.
When he was dismissed some three months into his job, he claimed under PIDA,
alleging that his complaint was a protected disclosure.

The EAT decided it was capable of being a disclosure. The Act may have the
word ‘public’ in its title, but its wording clearly covers any potential
breach.

Q What are the main implications for employers?

A PIDA has wide-ranging consequences, and the application of the
Sodexho principles could well mean many more employers will be subject to such
claims. Any employee who complains about a potential breach of their contract
and is then dismissed or subjected to a detriment could then make use of this
effective weapon against the employer.

A scenario that is fairly easy to imagine would be that an employee is in
the process of being disciplined.

He complains that some action of his employer has breached its contractual
duty to him, but the employer ignores this as irrelevant; the procedure continues
and he is dismissed. Then, the employee sues not just for unfair dismissal, but
also for PIDA. The employee does not have to be right about the breach, or
potential breach – he just has to reasonably believe it.

PIDA can now be seen as a powerful weapon for an employee, as there is no
limit to the compensation and no qualifying period. It is also a very highly
publicised claim, and so the employer may be deterred from defending a claim in
these circumstances to avoid publicity.

Employees, who may previously have tried to bring claims within a
discrimination field, may now try to bring their claims within PIDA as it will
be far easier for employees to use than discrimination.

Q What procedures do I need to have in place as an employer, to avoid
claims under PIDA?

A You would be well advised to have whistleblowing policies in place,
and to ensure all potential disclosures are carefully dealt with. This should
be coupled with a grievance procedure for all personal grievances to be aired.
You should seek advice where there is a doubt about a protected disclosure,
particularly if disciplinary action is considered against the employee.
Complaints by employees about potential breaches, however spurious they may
seem, should never be simply ignored.

Ensure you can explain the reasoning behind any steps you have or have not
taken after an employee has made a protected disclosure, or a tribunal may
infer that your actions were as a result of the disclosure.

If the employee has made a complaint which could bring them within PIDA,
refer specifically in your dismissal letter to the reasons for the dismissal,
and confirm that no other matters had any bearing on it. This will at least
help you to defend such a claim if it ever arises.

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