Whistleblowers are protected from dismissal and/or suffering a detriment on the grounds that they have made a protected disclosure about, for example, health and safety matters.
In the recent case of NHS Manchester v Fecitt & Others, the Court of Appeal has had to consider how much protection whistleblowers are afforded.
The Claimants were registered nurses who raised concerns with their employer that one of their colleagues, Mr Swift, was making false statements about his experience and professional qualifications. This was a qualifying disclosure, as it tended to show that the health and safety of individuals had been, or was likely to be, endangered and was capable of protection under the legislation.
As a result of the disclosure, Mr Swift agreed with his manager that his actions were wrong and promised to be honest in the future. Despite this, the Claimants continued to pursue the matter. This divided the workforce, with some supporting the Claimants, some believing that the Claimants were conducting a ‘witch hunt’ and some not wishing to take sides.
Relationships within the team broke down to such an extent that Mr Swift lodged a bullying and harassment complaint, the Claimants were subjected to isolation and daily insults by colleagues, with one receiving an anonymous telephone call with a threat to burn down her house. To regain morale, the employer redeployed two of the Claimants to another site and ceased offering shifts to the other. The Claimants alleged they had been subjected to a detriment as a result of making a public interest disclosure. They also claimed that their employer was vicariously liable for the treatment they had suffered at the hands of their colleagues.
The Court of Appeal held that the Claimants had not been subject to a detriment as a result of their disclosure. The reason their working arrangements were altered was a result of the poor working relationships in the team. The Court said the test to be applied in these circumstances is whether the protected disclosure materially influences the treatment of the whistleblower. The Court also held that the employer was not, and could not be held vicariously liable for how the Claimants had been treated by their colleagues. The legislation only provides protection for acts or omissions perpetrated by the employer.
Whistleblowing claims have risen steadily since the introduction of the legislation in 1999, from 150 to 1,750 claims last year and are likely increase further when the qualifying period to bring a claim for unfair dismissal increases to 2 years next year, as no qualifying service is required to bring a whistleblowing claim.
Whistleblowing claims can be complex and sometimes difficult for employers to defend as there is no requirement for a qualifying disclosure to be made in writing. Managers should keep good notes of discussions with employees, particularly if they are raising health and safety concerns, reporting criminal activity or alleging damage to the environment or other matter capable of being a qualifying disclosure.
In the event of a claim, the above case is a good result for employers, clarifying that if an employee suffers a detriment having made a protected disclosure, the detrimental treatment must have been materially influenced by the disclosure, as opposed to being a minor factor. Previous case law on this point had imposed a higher burden on employers.
If you have any comments or queries please do not hesitate to contact Joanne Holborn, Adrian Maitra, or Tom Scaife on 01228 552600. Alternatively, email one of the team at HR@baineswilson.co.uk.
28 October 2011