Blowing the Whistle

Except for dismissals which are deemed to be “automatically unfair”, employees must have  at least 12 months’ continuous employment in order to qualify for unfair dismissal protection.   One such automatically unfair reason for dismissal is because someone has made a “protected disclosure” otherwise known as “whistleblowing”, and this applies to constructive as well as actual dismissal.

For this reason, some canny employees who realise that they are at risk of being fired for poor performance (or some other reason) during the first year of employment, make allegations of wrongdoing to their employers and then when they are subsequently dismissed they try and invoke the whistleblowing protection.  This is naturally something which is of concern to employers, particularly as there is no cap on the level of compensation which can be awarded to someone who has been dismissed for making a protected disclosure.

However, employees who wish to use this ploy* should beware as the protection is only afforded if (a) the disclosure was made in good faith and (b) if the disclosure was the reason (or main reason) for the dismissal.  Furthermore, once the employer has established that the employee has not been employed for a sufficient period to claim ordinary unfair dimissal then the burden of proof is on the employee to show that the reason for the dismissal was because he made a protected disclosure and not some other reason.

The following disclosures are qualifying disclosures:

1.  that a criminal offence has been committed, is being committed or is likely to be committed;

2.  that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject

3.  that a miscarriage of justice has occurred, is occurring or is likely to occur;

4.  that the health or safety of any individual has been, is being or is likely to be endangered;

5.  that the environment has been, is being or is likely to be damaged; or

6.  that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

However, if the employer can establish that the employee did not make the disclosure in good faith then the employee’s claim will fail.   So what does it mean to make a disclosure in good faith?  The point is illustrated clearly in the case of Street v Derbyshire Unemployed Workers’ Centre [2004].

In this case the Claimant was employed as an adminstrator for Derbyshire.  In May 2000 she wrote to the treasurer of the borough council making various allegations against a colleague, a Mr Hampton.  The matters she raised were eventually investigated and Mr Hampton was exonerated of any wrongdoing.  The employers then commenced disciplinary proceedings against Mrs Street which resulted in her being dismissed for gross misconduct and breach of trust.  Mrs Street claimed that she had been dismissed for making protected disclosures and that her dismissal, therefore, was automatically unfair.

This case went all the way to the Court of Appeal and it was held that Mrs Street’s claim must fail because even though Mrs Street reasonably believed in the substantial truth of her allegations; even though she had not made the disclosures for personal gain and even though it had been reasonable for her to make the disclosures, the Court of Appeal (and the earlier tribunals) found that her disclosure had been motivated by her personal antagonism towards Mr Hampton and that this meant that it was not made in good faith. 

*This article is assuming that the employee is reporting the wrongdoing to his employer.  Other hurdles may need to be overcome if the employee makes the disclosure to another prescribed person.

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About Belinda Lester
I am the managing director and founder of Lionshead Law a specialist employment law and HR consultancy company.

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