Whistle blowing: Handle with care to avoid personal liability
The law encourages individuals to speak out when something is wrong. In the workplace this is often known as ‘whistle blowing’, or if using the legal definition, ‘protected disclosure’.
Protected disclosures are relatively commonplace in the workplace and are often raised by concerned or disgruntled employees when they may become aware of potentially unlawful or unsafe practices.
Protected disclosures are defined by section 43B of the Employment Rights Act 1996 (having been introduced as a result of the Public Interest Disclosure Act 1998).
On the basis that the employee in question raises the concern to their employer or a recognised public body (this can be verbally or in writing), they reasonably believe the concern to be true and raise it in the public interest (this is construed widely), the following will constitute a protected disclosure:
- A criminal offence has been committed, is being committed or is likely to be committed
- A person has failed, is failing or is likely to fail, to comply with a legal obligation to which they are the subject
- A miscarriage of justice has occurred, is occurring or is likely to occur
- The health and safety of any individual has been or is likely to be endangered
- The environment has been, is being or is likely to be damaged
- Information demonstrating any of the above is being deliberately concealed
If the employee is subsequently dismissed and can demonstrate that the sole or principle reason was that they raised a protected disclosure, then they can make a claim to the employment tribunal for unfair dismissal. It should be noted that the employee does not need the usual two years of continuous employment to be able to make a claim for unfair dismissal in these circumstances.
It should also be noted that there is no cap on the compensation that the employee could be awarded. For most claims of unfair dismissal the ex-employee’s claim will be capped to the basic award (the same calculation as statutory redundancy pay) plus a compensatory award. The compensatory award covers losses including the loss of earnings. This is capped at the lower of 12 months’ pay or £83,682 (this figure may increase from 6 April 2019).
Our advice is to always be cautious when dismissing an employee with less than two years’ service to ensure that they have not done something that could be construed as raising a protected disclosure. We also advise if a protected disclosure has been raised, or appears to have been raised, by an employee that caution is taken.
Employees who raise a protected disclosure also have protection from being treated unfairly or punished as a result. Should this happen they can present a claim to the employment tribunal that they have been subject to a detriment.
A detriment claim can also be brought against individuals as well as the company. This has recently been seen in the case of Timis and another v Osipov [2018] EWCA Civ 2321.
In this case the Court of Appeal held that two non-executive directors were held to be personally liable in part of the dismissal of Mr Osipov. One of the non-executive directors instructed the other to dismiss Mr Osipov, which duly happened. Mr Osipov was successful in a claim for unfair dismissal and also successfully argued that the actions of the two non-executive directors constituted an unlawful detriment. As a result both of the non –executive directors were held to be personally liable for Mr Osipov’s post dismissal losses. It is understood such losses were very significant (in the region of £1.7 million).
The case outlines the importance to employers and directors to act carefully, fairly and reasonably should an employee raise a protected disclosure or blow the whistle.
If you have an employment issue and need advice, contact me directly via robert.zacal@GAsolicitors.com or call 01752 203500.
Rob Zacal, employment solicitor
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