 Earlier this week, the Times Online reported that a worker at Marks & Spencer (M&S) had been suspended after he “blew the whistle” on M&S’s plans to cut its enhanced redundancy payouts by up to 25%. According to the Times Online, the new redundancy terms come into force on Monday, 1 September 2008, which they also report is the same day on which the whistleblower has been invited to attend a disciplinary hearing.
What is whistleblowing?
UK employment law protects workers who are whistleblowers from being subjected to a detriment and employees who are whistleblowers from being dismissed. So what makes someone a whistleblower?Put simply, a whistleblower must have made a “protected disclosure”. To be a "protected disclosure", a whistleblower must show that the disclosure is:
1. A disclosure of information (written and/or verbal)
2. A "qualifying" disclosure i.e. it was their reasonable belief that the disclosure showed that one or more of six "relevant failures" had or was likely to occur
The six relevant failures are:
- Criminal offences
- Breach of any legal obligation
- Miscarriages of justice
- Danger to the health and safety of any individual
- Damage to the environment
- The deliberate concealing of information about any of the above
The whistleblower should have a reasonable belief that the failure has occurred. It does not matter if this belief subsequently turns out to be wrong, or that the facts alleged would not amount in law to the failure/s alleged. 3. “Protected" i.e. it is made in a manner prescribed by the Employment Rights Act 1996
A qualifying disclosure must be made to an employer, regulator, legal adviser, minister or other responsible or prescribed person, subject to certain conditions. Unless the disclosure is made to a legal adviser, it must also be made in good faith.
Remedy
If a whistleblower is dismissed because they made a protected disclosure:
· It is not necessary to have had one year’s continuous employment before being eligible to bring a claim (this is usually required to bring an unfair dismissal claim).
· Their dismissal will be automatically unfair.
· The usual remedies for unfair dismissal apply (i.e. re-instatement, re-engagement and compensation) save that the cap on compensation is lifted.
· It is also possible to apply for interim relief within 7 days of the dismissal. If granted this means that an employee has a right to continue to receive their salary pending the final determination of their case.
If a whistleblower has been subjected to a detriment on the ground that they made a protected disclosure: · An employment tribunal must make a declaration to this effect and may award compensation.
· Compensation can include injury to feelings whereas an unfair dismissal claim (whether or not on the grounds of whistleblowing) cannot. Injury to feelings compensation is assessed according to the Vento guidelines.
So what does this mean for the M&S whistleblower?
It is not clear from press coverage to date what the M&S whistleblower’s qualifying disclosure would be and whether or not this would be considered to be a protected disclosure. We will have to await the outcome of the disciplinary hearing next Monday to see if any more information is disseminated into the public domain. So what should employers do?
1. Employers need to ensure they are clued up on whistleblowing legislation. This is an increasingly popular claim amongst middle-aged, white males as it enables them to lift the cap on a normal unfair dismissal claim.
2. Check that your organisation has a whistleblowing policy in place, to help your organisation quickly identify and remedy malpractices.
3. Employees operating the whistleblowing policy should be trained so that matters can be resolved with the least possible damage being caused to your organisation (be this reputational damage or otherwise).
4. Consider putting in place an external counselling hotline as support for workers who raise concerns under a whistleblowing policy.
Remember…
It is important to bear in mind that all that is required is that the disclosure tends to show a breach of a legal obligation. It does not need to be about some major issue of national importance or public interest. It could be as mundane as the whistleblower’s own contractual arrangements. The redundancy terms offered to redundant M&S employees may be of passing interest but they are hardly of earth shattering importance to the public at large. Employees need to be alert to the issue and make sure that, a protected disclosure having been made, the whistleblower is not treated in anyway less favourably as a result, however great the urge may be regard others as annoying troublemakers.
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