Whistleblowing Settlement Agreements
Whistleblowing settlement agreements are fairly common ways to conclude what can be a difficult chapter in an employee’s career. As you will see below, the paths of a whistleblower can be fraught with difficulty. It is a noble effort to blow the whistle, and there is nothing wrong with getting something in return, like a negotiated settlement agreement exit package.
Settlement agreements won’t expressly stipulate that you can’t report your employer to the authorities, but effectively that would be the compromise which you would be entering into if you decide to accept a payment from them in return for leaving quietly.
However, it is surprising how many employers would rather take their chances with bad publicity than pay off a troublesome employee with a settlement agreement. This article explores the in’s and out’s of whistleblowing, along with strategy and tactics for how to blow the whistle and negotiate a settlement agreement (formerly known as a compromise agreements).
Top 3 TIPS
- You can only ‘blow the whistle’ about matters in the public interest – not about your own treatment
- No minimum length of service is required to bring a whistleblowing claim
- Seek legal advice – it is a complicated area of the law
What is the definition of whistleblowing?
In UK employment law, whistleblowing is ‘making a protected disclosure’ under PIDA (Public Interest Disclosure Act). So in essence the disclosure needs to be in the public interest, something dishonest or unreliable which people should know about. It is not just restricted to criminal activity, such as fraud, but it can also be a breach of regulations or civil law, like discrimination in the workplace for example.
Whistleblowing itself is one way of doing the right thing for the public at the same time as leaving your job due to the malpractice by the employer, and hopefully receiving a settlement payment to tide you over until you get another job. In most instances, once you have blown the whistle on malpractice, the employer will take steps to put right the wrongs which it has committed. So although you are not exposing them to the public (through the media for example) at least you are stopping the bad thing from happening, whilst tiding yourself over financially until you can get a new job.
Suffering a detriment, bullying or harassment
Being mistreated by your employer, or even by your colleagues, due to having blown the whistle, is a breach of s.47B of PIDA, which is designed to protect whistleblowers. This means that you are able to claim compensation for this, even if you haven’t been forced out of your job.
So you can issue an employment tribunal claim for victimisation whilst you are still employed. The meaning of a detriment is quite a wide one – it is any treatment which would objectively make someone in your position feel that are being disadvantaged in continuing their employment.
Constructive or unfair dismissal
Often, once you have become a whistleblower, you are mistreated by your employer to the extent that you feel forced to resign, or, more rarely, you are actually dismissed. Most employers guilty of this will not go as far as to dismiss you because that would look too obvious, and of course they will deny any mistreatment should you bring a claim for constructive dismissal. But it is quite a difficult legal test to fulfil, so the detriments must be fairly serious in order to justify your resignation.
Minimum length of service
Fortunately the normal length of service requirements don’t apply in a whistleblowing case, so where you would normally have to be employed for two years in order to claim constructive or unfair dismissal, in a whistleblowing case there is no minimum service requirement, so in theory you could claim this after having been employed for just one day.
Whistleblowing and protected conversations
Under s.11A(3) of the Employment Rights Act 1996, whistleblowing is an exception to the new rule about protected conversations, aka ‘confidential termination negotiations’. In a normal unfair dismissal case, your employer has immunity from revealing in court any settlement discussions whereby you were asked to leave your job in exchange for a pay off, contained within a settlement agreement.
In whistleblowing claims, this additional protection for the employer goes out the window, and the only way they can keep such discussions out of the judge’s ears (if the case ever gets to court) is to claim that they were ‘without prejudice’. Essentially this means there has to have been an existing dispute, such as a disciplinary or grievance process being instigated. If the employer comes out of the blue to offer you a deal in exchange for leaving quietly, there’s every chance that we at Monaco Solicitors could use this to your advantage.
Why you will probably need a lawyer for a whistleblowing negotiation
It will be virtually impossible to win without lawyers because this is such a technical area. For example, if you’ve been employed for under 2 years, you may have to prove that you resigned (or were dismissed) as a detriment following on from blowing the whistle.
In other words, if you report a wrongdoing and then the employer genuinely corrects its behaviour, without subjecting you to any detriments, then you won’t be entitled to resign and claim constructive dismissal.
If you have more than 2 years’ service, then you are entitled to resign in disgust at the behaviour of the employer and then claim constructive dismissal, regardless of whether you have actually been victimised as a result of whistleblowing or not. Even in this situation you will be expected to have blown the whistle before you step down.
It is very important to put together a strong and accurate ‘ET1’ or particulars of claim document in whistleblowing employment tribunals. This is the document which starts off your claim. It is necessary to identify the ‘protected disclosures’ made (when you reported the wrongdoing) and also the ‘detriments’ (any victimisation you suffered as a result). It is also important to set out which laws have allegedly been broken by the employer. For these reasons we would strongly advise you to reach out for legal representation in whistleblowing claims.
Evidence needed for a whistleblowing negotiation
Evidence will be a key feature if you stand any chance of winning. The employer will often be armed to the teeth with lawyers so you can do no better than be armed with hard evidence of the wrongdoing. Nowadays a lot of business is done by email so you have no excuse not to have a portfolio of documentation to support your claim.
The Public Interest Disclosure Act (known as PIDA) provides that whereby an employee obtains confidential documents, this will not be counted as a breach of their contract of employment so long as the documents are disclosed to an appropriate person and/or used in a whistleblowing employment tribunal. Unscrupulous employers can make threats of action against whistleblowers, including claims over documents disclosed to third parties, and these strong-arm tactics can be difficult to stand up to.
When it comes to witnesses, you’d be lucky to have any step forwards, but that kind of luck can be just what need to win your case. Sometimes there are 2 or more whistleblowers, or in big companies there may be other employees who are unhappy at work and can provide vital background, or even direct experience of the type of wrongdoing complained of.
Dealing with the media
This can be a very daunting experience and frankly very difficult to do, mainly because journalists appear to be such busy people! At Monaco Solicitors we have solid connections with the press, from tabloid to broadsheet to magazines, and we can use these connections to help bring about a solid compromise / settlement agreement in your favour. Often the thought of going to the press can be enough to influence the company to sweeten the deal, at other times it can be necessary to get the media involved in the first place, either to ramp up the pressure on the company or to do some investigative journalism and actually dig up evidence to help in your claim.
Dealing with the authorities
You are probably considering whether to report the foul play to the authorities in order to make sure it doesn’t happen again and also to clear your own name from any involvement. This is certainly something we’ll consider carefully with you. It could be a useful exercise to understand more about what kind of evidence you would need to actually prove significant wrongdoing.
The same could be said about journalists. It may also be that any compromise agreement / settlement agreement negotiations could be affected by such a move. Whilst it may be preferable to report matters to the authorities, some clients prefer to get the company to admit it’s wrong, by agreeing to settle your claims, and leaving it at that, taking no further action.
Compensation for whistleblowers
The financial aspects of a whistleblowing tribunal are as follows. If successful you would be entitled to claim your financial loss for as long as you were out of work and actively applying for new jobs (or setting up your own business) – so this could be around 3 or 6 months’ income, or a year at a push.
Further compensation available for any victimization is normally around £5-25k only. If your case has a USA aspect to it then compensation in the USA can be a lot higher and we can help you with that.