August 24, 2015

Can you dismiss a whistleblower?

Dismissing an employee for ‘blowing the whistle’ is automatically unfair, no matter how long they’ve been at the organisation, according to a recent case.

Workers are protected under the law if they reveal to those in positions of authority suspected malpractice at work.

It is in the public interest that the law protects whistleblowersso that they can speak out if they find malpractice in an organisation. A report from whistleblowing charity Public Concern at Work (PCAW) has highlighted how misguided the Government’s Enterprise and Regulatory Reform Act (ERRA) really is.

As far as dismissal is concerned, a dismissal for making a disclosure is automatically unfair and there is no qualifying period of service needed to bring a claim.

A successful claimant is entitled to an unlimited injury to feelings award. As recently as 2013, the legislation was changed to require that a disclosure be in the public interest.

Earlier this year, in the case of Chestertons v Nurmohamed, the Employment Appeal Tribunal (EAT) ruled on this for the first time.

The case

In the case, the Claimant was a senior manager in a firm of estate agents.

He made disclosures alleging that the company was manipulating its accounts to the detriment of the commission payable to him or the 100 or so other senior managers for the benefit of shareholders and in breach of a legal obligation to the managers.

The EAT ruled that the appropriate test for public interest was that the employee has a reasonable belief that the disclosure was in the public interest and in this case the 100 or so general managers did constitute “the public”.

Employers need to be very careful when analysing communications from an employee and understanding whether or not they are a protected disclosures particularly where there are disciplinary issues involving the employee concerned.

In a recent case in a two page grievance email the following paragraph appeared:“Finally there is another issue to do with health and safety.

“Close to my office is a stock room where asbestos was previously found. My staff members and I do not feel comfortable entering and exiting there”.

Despite the Claimant admitting that the room was kept locked and that only the employer’s builder had the key the judge found that this was a protected disclosure.

In another recent case the employee, a domiciliary care worker, in a grievance suggested that the hours that she worked created a health and safety risk for herself and the lady she cared for without any further explanation.

The rest of her grievance related to her terms and conditions and she was dismissed for refusing to sign her contract and a 48 hour opt out.

The tribunal found that her grievance related to her terms and conditions and that she had failed to show that there was any public interest.

Do you need help or advice on this subject? You can contact us or take a look at our handyemployer resources.

By Peter Redman, LL.B (Hons)Solicitor

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