Whistleblowing

Whistleblowing is one way of making sure that your employer’s malpractice comes to an end whilst leaving your job and hopefully receiving a settlement agreement to tide you over until you get a new job. Blowing the whistle is a noble effort, and there is nothing wrong with getting something in return,  but the path of a whistleblower can be fraught with difficulty.

Whistleblowing

It is surprising how many employers would rather take their chances with bad publicity than make a settlement payment to someone they consider to be a ‘troublesome’ employee.  We explore below some of the theory and legal dimensions of whistleblowing,  the strategy and tactics for how to blow the whistle and negotiate a settlement agreement  and conclude with a brief look at financial compensation in such cases. 

What is whistleblowing?

In UK employment law, whistleblowing is ‘making a protected disclosure’ under PIDA (the Public Interest Disclosure Act). This act itself amended the Employment Rights Act 1996, so it is the ERA 1996 which you may also find yourself referring to.

In essence the disclosure needs to be in the public interest, and 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, or health and safety breaches

In most instances, once you have blown the whistle on malpractice, your employer will take steps to put right the wrongs which it has committed. So although you are not exposing them to the public (eg through the media) at least you are stopping the bad thing from happening,

Top 3 Tips

  1. You can only ‘blow the whistle’ about matters in the public interest – not about your own mistreatment
  2. No minimum length of service is required to bring a whistleblowing claim
  3. Seek legal advice – it is a complicated area of the law

Whistleblowing and constructive or unfair dismissal 

Often, once you have become a whistle-blower, 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 mistreatment 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 fulfill in a tribunal, so the detriments must be fairly serious in order to justify your resignation.

 Suffering a detriment, bullying or harassment 

Being mistreated, bullied or harassed by your employer, or even by your colleagues, because you have 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 such mistreatment, 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, exactly like with discrimination claims. Staying employed whilst running a tribunal claim against your employer is very handy for negotiating an exit package.

The meaning of a ‘detriment’ is a very wide one: it is any treatment which would objectively make someone in your position feel that are being disadvantaged in continuing their employment. It could be anything from being told off and ostracized, to being passed over for promotion or frankly anything at all which could be construed as a disadvantage.

Minimum length of service 

The normal length of service requirements don’t apply in a whistleblowing case, so where you would normally have to be employed for 2 years in order to claim constructive or unfair dismissal, in a whistleblowing case there is no minimum service requirement. This is very helpful to get you over that 2 years’ service rule in a negotiation (or tribunal).  However:

  • If you’ve been employed for under two 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 two 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 victimized as a result of whistleblowing or not. Even in this situation you will be expected to have blown the whistle before you step down.

Whistleblowing and protected conversations

Under s.11A(3) of the Employment Rights Act 1996, whistleblowing is an exception to the rule about protected conversations  aka confidential termination negotiations.

In a normal unfair dismissal case, your employer has immunity from revealing in court any discussions with you about leaving your job in exchange for a settlement pay-off.  In whistleblowing claims, however,  this additional protection for the employer goes out of the window, and the only way they can keep such discussions away from 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 a good employment lawyer could use this to your advantage.

Evidence needed for a whistleblowing negotiation

Evidence will be a key feature if you are to 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 might be able to get  a portfolio of documentation to support your claim. 

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. But the Public Interest Disclosure Act referred to earlier provides that if 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.

Stack of documents

When it comes to witnesses, you’d be lucky to have any step forward, 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 handle, mainly because journalists appear to be such busy people!  A reputable employment lawyer will have good connections with the press, from tabloid to broadsheet to magazines, and might be able to use these connections to help bring about a solid  settlement agreement in your favour.

Often the thought of going to the press can be enough to influence the employer 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 employer or to do some investigative journalism and actually dig up evidence to help in your claim. Unfortunately it is quite common for the employee to think that they have a very newsworthy story but journalists, and even the employer, don’t take much interest in it at all.

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 your lawyer will want to consider carefully with you. It could be a useful exercise to understand more about what kind of evidence you would need to  prove significant wrongdoing. It may also be that any exit negotiations could be affected by such a move. Whilst it may be preferable to report matters to the authorities, some employees prefer to get the employer to admit they’re wrong, by agreeing to settle your claims, and leaving it at that, taking no further action. At least that way the wrongdoing has stopped and you have moved on swiftly.

Gagging clauses

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 decided to accept a payment from them in return for leaving quietly. This is a difficult point to understand and to implement in practice. Basically an employer never has any guarantees that you won’t report them, even after you sign an agreement. They would not be allowed, for example, to claim the settlement money back because you reported their fraud after you received your settlement payment. Therefore there has to be an element of trust involved when settling a whistleblowing claim. For that reason it’s even more important not to burn your bridges.

Negotiating in whistleblowing cases

Whistleblowing is  a complex and technical area. For example: compiling sufficient evidence to demonstrate detriments or dismissal for whistleblowing and then ensuring that this evidence fits the highly-complex legal tests is very difficult.  It therefore follows that to negotiate in circumstances in which whistleblowing discrimination has been alleged, is also very hard. Even getting your employer to understand your case can be difficult, because the law in this area requires evidence to be set out in a certain way.

It is important to put together a strong and accurate ET1 (employment tribunal claim form) or particulars of claim document for use 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 victimization you suffered as a result).  Additionally it’s important to set out which laws have allegedly been broken by the employer.

What’s called a ‘Scott Schedule’ (a type of table usually used  to present the allegations) is used. This usually takes the form of an Excel spreadsheet setting out:

  1. A list of the illegal activities, with specific reference to which section of PIDA has been breached in each instance.
  2. A list of the ‘protected disclosures’, meaning the time, date, place and how you reported it and who to. This list should refer back to the list of illegal activities.
  3. A list of the ‘detriments’ meaning the instances of victimisation which you suffered, by who where and when.  This list should refer back to the list of disclosures – you have to specify which detriments were done to you in relation to the above disclosures.

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’s income at a push.
  • Further compensation available for injury to feelings due to any victimisation is normally around £600 – £30k.  This element is similar to that in discrimination claims 
  • If your whistleblowing case has a USA aspect to it then compensation in the USA can be a lot higher and a good employment lawyer  can probably help you with that. That is because in the USA, companies are fined millions by the government, and the whistleblower is given a reward which is a percentage of the fine. Unfortunately in the UK there is often little to no action taken by the government against companies which break the law. Maybe that is because there is no mechanism to fine them for breaking the law. In this regard, perhaps we should be more like America!