Protected disclosure can be a minefield for employers

Employers need to ensure they can substantiate their reasons for their
treatment of their staff, or they could find themselves liable for large
damages awards in a tribunal

Claims of victimisation or dismissal
because of ‘protected disclosures’ or ‘whistleblowing’ pose particular
difficulties for employers as they are based on legislation that is still
relatively untested. Also, a dismissal on the grounds of a protected disclosure
is automatically unfair; there is no continuous service requirement, and no cap
on compensation.

To make a claim, an employee must show that one of a list of types of
protected disclosure has been made, and that the disclosure was the main reason
for the victimisation or dismissal.

Protected disclosures include those relating to criminal offences,
miscarriages of justice, dangers to health and safety, damage to the
environment and the concealment of such matters. Although the onus is on an
applicant to satisfy a tribunal that a protected disclosure was made in good
faith, most claims rely on one broadly drawn category of disclosure – that the
employer has "failed, is failing or is likely to fail to comply with any
legal obligation to which he is subject".

In Parkins v Sodexho Limited, the EAT said that any breach of contract –
such as a breach of health and safety obligations, manifested in that case by
alleged lack of adequate supervision – could be categorised as a failure to
comply with a legal obligation. This may seem far removed from the original
idea behind the whistleblowing legislation – to encourage openness and protect
workers who expose serious malpractice in their organisation. But it appears
that the policy is long since forgotten, and it is now seen merely as
legislation that further limits the circumstances in which an employer can
dismiss an employee fairly.

Douglas v Birmingham City Council and Others arose out of a number of claims
made by a teacher and governor, who had complained to a fellow school governor
about the apparent lack of equal opportunities in the school.

The fellow governor reported the discussion to the headmistress. The
teacher, unhappy about her fellow governor’s failure to respect what she
believed to be a confidential conversation, complained in a letter expressed as
an ‘official complaint’ to the chairman of the governors.

She went on to resign and complained that her right not to suffer detriment
as a result of making protected disclosures had been violated. The EAT said
that a private conversation with a fellow governor who was not her employer
could not be a protected disclosure, but the complaint to the chairman could
be.

The essence of the teacher’s allegation was that the head teacher (and the
school) was engaged in a practice that conflicted with its duty as an employer
to comply with its equal opportunities policy and with anti-discrimination
legislation. She had alleged a failure to comply with legal obligations and,
therefore, the disclosure of this allegation to the chairman of the governors
was within the definition of a protected disclosure.

It appears that as long as the employee’s disclosure identifies a specific
breach of obligation by their employer, and the alleged breach does not merely concern
the particular employee involved but has implications for the rest of the
workforce, it can be within the protection of the legislation.

Employees are increasingly using the protected disclosure provisions to
bring claims outside the standard unfair dismissal framework, often to raise
the stakes in settlement discussions, as there is no upper limit on
compensation. In this circumstance, the onus is on the employer to prove a
negative.

To avoid liability for uncapped compensation, employers are advised to
ensure they have clear paper trails so they can substantiate the reasons for
their treatment of employees, and prove it was unrelated to any alleged
disclosure.

By Naomi Feinstein, Partner, Lovells

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