Covid 19 – increased whistleblowing claims and the dangers of interim relief – what employers need to know.
The Covid 19 pandemic has resulted in many employees working remotely and/or being furloughed. Employers have had greatly increased health and safety obligations as a result of having to make their workplaces Covid 19 secure. The pandemic may also have made it harder for employees to raise concerns and many may have felt ignored.
The whistleblowing charity Protect reviewed around 600 calls made to its advice line between March and September 2020. It’s report, published in October 2020, found that 20% of whistleblowers claimed they were dismissed after raising concerns to their employer. The concerns included furlough fraud, increasing risk to public safety, shortage of personal protective equipment in workplaces and failure to follow government safety guidance.
At Jones Chase, we believe that we will see an increase in whistleblowing claims in 2021 as a result of these kinds of issues being raised and the way in which employers deal with them. In this bulletin we set out what kinds of disclosures and responses to them can give rise to potential legal liability for employers and how getting it wrong can prove very costly and time consuming.
Whilst there is no legal obligation on an employer to have a whistleblowing policy, we strongly believe that now is a good time to implement one or to review your current arrangements.
Set out below are Jones Chase’s top tips for getting to grips with whistleblowing and dealing with it effectively.
The information contained in this bulletin is accurate as at 27 April 2021.
1. What is whistleblowing?
Whistleblowing legislation aims to encourage the disclosure of often sensitive and important information (verbally or in writing), typically for the greater good, by giving the individual making the disclosure protection against retaliation. Those protected include employees and workers. They are protected from unfair dismissal (employees only) and other forms of detriment.
The concept of whistleblowing protection arose from a number of public disasters, including the Zeebrugge ferry incident and Piper Alpha oil rig disaster in the late 1980s, where it was discovered that individuals had information that could have been used to prevent these tragic events from taking place, but were too nervous about speaking up for fear of recrimination.
Essentially, a worker blows the whistle when they make a disclosure of information, which in their reasonable belief, is made in the public interest and tends to show one of a number of particular failings on the part of the employer, an employee or a third party. The failings include breach of any legal obligation, dangers to health and safety of an individual, committing a criminal offence or deliberately covering up any of these. The disclosure is usually made to the employer but can be made to another appropriate body listed in the legislation. This is known as ‘protected disclosure’. It does not matter if ultimately the individual was wrong about their facts or allegations.
In the context of the pandemic, the disclosures that workers have made about their concerns about health and safety and furlough fraud may well qualify as protected disclosures.
2. What is in the public interest?
There is some case law on this point, notably a Court of Appeal case from 2017 involving Chesterton Global Ltd. There are no absolute rules about what being in the public interest means but the impact of the particular issue must usually be wider than the individual making the disclosure. The size and profile of the organisation will also be relevant. No doubt raising concerns about an organisation’s perceived failure to follow health and safety advice regarding Covid 19 or alleged furlough fraud would be in the public interest as they would affect a number of other people.
3. What does detriment mean?
A detriment is suffering some form of disadvantage. This could include withholding pay, a demotion, failing to promote, suspension, being bullied or ostracised, disciplinary sanction and failure to provide an appropriate reference.
4. What should an employer look out for, arising from Covid 19?
An employee may indicate that they have concerns about the safety of their employer’s workplace including lack of social distancing, lack of cleaning, lack of face masks, lack of ventilation and/or, too many people in the office.
An employee may also express that they are unwilling to attend the office and/or travel on public transport because of their fear of catching Covid 19. The question here is whether the employee had a reasonable belief that they were in “serious and imminent danger” which they could not be expected to avert. An employer can mitigate against this by, for example, clearly communicating to all staff the steps they have taken to make the workplace Covid secure. They could also make suggestions to deal with concerns about public transport, such as offering car parking facilities.
It is therefore a question of spotting what could be a whistleblowing email or statement which you should then treat as such.
5. What claims could an individual bring?
If an employee were dismissed or subjected to a detriment after they had raised these kinds of concerns this could lead to the employee bringing a claim for automatically unfair dismissal and/or an unlawful detriment under the whistleblowing legislation. A claim can be brought against another individual worker, as well as the employing organisation. This means that the individual who implements a decision to dismiss could be personally liable for the losses flowing from the detriment or dismissal. For a high earner such losses could be significant and compensation is uncapped. There is no need for any particular length of service (so 2 years’ service is not required, unlike with an ordinary unfair dismissal claim).
The individual could also make an application for interim relief which is dealt with below.
6. Interim relief – a formidable weapon
A little-known weapon in an ex-employee’s armoury could prove very costly to employers who dismiss whistle blowing employees. If an Employment Tribunal decides to award what is called ‘interim relief’ to the dismissed employee, the employer could be ordered to pay the employee’s salary and benefits until the date of a final hearing, which could be over a year away. If the employee ultimately loses the case, they do not have to pay the money back. Such hearings for interim relief are also generally held in public so could prove commercially embarrassing as well as very expensive.
As such, interim relief is a formidable weapon for claimants (i.e. the dismissed employee), whose employer may have to pay their salary and benefits until the final hearing of their employment tribunal claim.
A claimant can make an application for interim relief to an Employment Tribunal within 7 days of the date of their dismissal (or during their notice period). They have to show that it is likely (i.e. there is a pretty good chance) that they would succeed at a full hearing in showing that:
- they made a protected disclosure; and
- the protected disclosure was the reason or principal reason for their dismissal.
What this means is that the ex-employee is asking the Employment Tribunal to make an order for the continuation of their employment pending a final hearing of the case. So, the individual continues to receive salary and benefits from the employer, which, even if the individual were to lose their case at the final hearing, they do not have to pay back. In addition, if the individual wins their case, the employer may have to pay them significant uncapped future loss of earnings.
Given cases are now taking a year or so to be listed, this could be very costly for a business, particularly if the employee were highly paid. Interim relief has been a rarely used tool by claimants to date, but claimant lawyers are becoming more aware of this tactic and we may see a rise in such applications this year.
7. What policies should you have in place?
As an employer, if you can encourage staff to whistle blow as a means of reporting wrongdoing, it can help you manage the risks to the organisation. You should have a clear and easily accessible whistleblowing policy. You should also ensure that you train staff on how to make a disclosure and train managers on how to deal with disclosures. Look to develop a culture where staff feel safe to make disclosures, they know who to go to and feel that they will not suffer a detriment for doing so.
If as a business you are considering dismissing someone in circumstances where they have made complaints about health and safety (or other matters), which may be protected disclosures, you should ensure that you have very clear reasons for the termination which are well documented, and follow a fair process, including any internal processes or policies. Having a clear paper trail can go a long way to minimising the impact of any claims. Having good policies, training and an open culture should help towards avoiding any claims in the first place.
Bespoke consultation / free employment law webinars
If you require advice on any of the above, want assistance with implementing a particular policy or strategy, or have any questions, please feel free to get in touch. We would be delighted to provide you with a bespoke consultation on your options and a tailored plan to benefit your business.
We can help employers identify whether or not a disclosure from an employee might qualify as a protected disclosure, whether related to Covid 19 or otherwise. We can advise on how best to respond to it, deal with any issues raised and reduce risks of legal complaints.
In addition to our free employment law bulletins, we also run free webinars covering a wide range of employment law topics. Please email firstname.lastname@example.org if you would like to be included on our webinar mailing list.
About the firm
Jones Chase is a specialist employment law firm based in the centre of London with an excellent track record of looking after those that we assist.
We fundamentally believe in helping both businesses and people with all their employment law needs.
Feel free to contact us should you require further information or need any assistance. We are always happy to speak to people and point them in the right direction.