72 SUPPORT STAFF 232 BARRISTERS 13 QUEEN S COUNSEL 16/10/2015 WHISTLEBLOWING CLAIMS: PRACTICAL GUIDANCE EMPLOYMENT LAW SEMINAR 5 OCTOBER 2015

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1 EMPLOYMENT LAW SEMINAR 5 OCTOBER BARRISTERS 72 SUPPORT STAFF 13 QUEEN S COUNSEL 1 ST JOHN S BUILDINGS WHISTLEBLOWING CLAIMS: PRACTICAL GUIDANCE DIARMIUD BUNTING OVERVIEW What protection does the law offer in respect of whistleblowing? Protection from detriment: s47b of Employment Rights Act 1996 ( ERA ) Protection from dismissal: s103a ERA Definition of protected disclosure (blowing the whistle): s43a ERA 1

2 You know one when you see one?? Tread carefully s43a ERA - Meaning of protected disclosure In this Act a protected disclosure means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. s43a refers to various other subsections, so it cannot be all that simple 43B(1) ERA - Disclosures qualifying for protection In this Part a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and* tends to show one or more of the following (to follow) Disclosure of information Note reasonable belief *disclosures on/after 25 June 2013 (ERRA 2013) Tends to show one or more of what ( s43b(1))? a) that a criminal offence has been committed, is being committed or is likely to be committed, b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, c) that a miscarriage of justice has occurred, is occurring or is likely to occur, d) that the health or safety of any individual has been, is being or is likely to be endangered, e) that the environment has been, is being or is likely to be damaged, or f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. 2

3 Disclosure to whom? ss 43C-43H s43c disclosure to employer or other responsible person s43d to legal advisor s43e to Minister of Crown s43f to prescribed person s43h disclosure of exceptionally serious failure COMMON DISCLOSURES The matter disclosed is often under subsections (b) & (d) of s43b(1) ERA (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (d) that the health or safety of any individual has been, is being or is likely to be endangered We will focus on breach of legal obligation Note that dismissals related to H&S disclosures are distinct from dismissals under s100 ERA (e.g. s100(1)(e) in case serious and imminent danger C took steps to protect himself or others) DISCLOSURE OF INFORMATION s43b(1) requires the disclosure of something factual Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38 EAT C one of R s three shareholders Discussion of a buyout by other two directors C s solicitors wrote to R expressing concerns about unfair prejudice as a minority shareholder EAT (overturning ET): Not information, just an allegation 3

4 REASONABLE BELIEF IN RELEVANT FAILURE s43b(1) requires C to have a reasonable belief in the breach / failure No requirement for actual breach to have occurred (e.g. breach of a legal obligation or criminal offence etc) Babula v Waltham Forest College [2007] IRLR 346 Lecturer s predecessor inciting racial hatred No such criminal offence at the time CA upheld C s appeal: C s belief in breach was objectively reasonable [see Korashi] & in good faith FAILURE TO COMPLY WITH A LEGAL OBLIGATION (OLD) Parkins v Sodexho Ltd [2002] IRLR 109 EAT found that a legal obligation could be a private contractual obligation Purpose of legislation? Public interest? Result: Qualifying disclosure could relate to a breach of the employee s own contract Therefore it could relate to a breach of trust and confidence FAILURE TO COMPLY WITH A LEGAL OBLIGATION (NEW) Disclosures on/after 25 June 2013 Worker must still demonstrate he had a reasonable belief that the disclosure was, for example, a breach of a legal obligation etc Must also now show a reasonable belief that the disclosure was made in the public interest No provision in the new wording excluding disclosures concerned only with C s and R s private contractual relationship Only requires that C reasonably believes the disclosure is made in the public interest 4

5 REASONABLE BELIEF, PUBLIC INTEREST AND GOOD FAITH Will breaches of trust/confidence still be actionable? Only if C can establish belief in public interest Cannot be taken for granted in all circumstances E.g. where employer is NHS or government department, or a household brand name Reasonableness of C s belief that disclosure was made in the public interest should probably be considered (like his belief in the breach, per Korashi) with reference to the information available and C s expertise and knowledge REASONABLE BELIEF, PUBLIC INTEREST AND GOOD FAITH Relevance of good faith pre 25 June 2013: Previous position was that the predominant purpose of the disclosure was to remedy the wrong (Street v Derbyshire Unemployed Workers Centre [2004] IRLR 687) If C s main motive was to get back at R, to cause trouble for R, - even if that was in response to reprehensible treatment - his disclosure was not protected REASONABLE BELIEF, PUBLIC INTEREST AND GOOD FAITH New position somewhat different: Probable that ulterior motive will not be fatal if C had reasonable belief in public interest C does not have to disclose because of his reasonable belief Lack of good faith may result in <25% less compensation (s123(6a) of ERA) Only if C s motivation is solely animosity towards R, and if he gives no consideration whatsoever to the public interest, is this fatal to C s claim If so, C had no belief (reasonable or otherwise) that the disclosure was made in the public interest Unlikely to be as clear cut in practice Mixed motives more likely scenario not fatal to C s claim 5

6 DETRIMENT CASES ERA Part V - s47b(1a) Protection from suffering detriment in employment A worker ( W ) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done a) by another worker of W s employer in the course of that other worker s employment, or b) By an agent of W s employer with the employer s authority, On the ground that W has made a protected disclosure. NB: worker (s43k) & on the ground that DETRIMENT CASES Detriment on the ground that Position on causation now in line with other areas of discrimination law (Fecitt v NHS Manchester [2012] IRLR 64) Issue: whether protected disclosure was a material factor in the employer s decision s47b(1b/c) the detriment is treated as also done by the worker s employer, regardless of whether the matter complained of is done with employer s knowledge or approval s47b(1d) reasonable steps defence available to R Before ERRA changes, previous position was unclear, as per Fecitt DISMISSAL CASES ERA Section - Part X - s103a Unfair dismissal - Other dismissals An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. NB: reason or principal reason & employee Causation different from in detriment case 6

7 DISMISSAL CASES ET will consider what was the true reason for the dismissal The reason that operated in the employer s mind at the time of dismissal (per Lord Denning in Abernethy v Mott, Hay & Anderson [1974] ICR 323 CA) Much stricter test than in detriment claims Problematic if C s conduct, performance or attendance are questionable These other matters may have formed at least part of the reason for her dismissal Issue will be to what extent these other matters were causative of the dismissal Noteworthy that burden of proof in establishing reason for dismissal in a whistleblowing case will rest upon C if he has less than two years service THE MANNER OF DISCLOSURE Particularly relevant in dismissal cases due to stricter causation test C may be dismissed due to the manner in which he conducts himself in making disclosures Does not necessarily follow that C is dismissed by reason of protected disclosure even if he made a qualifying disclosure Panayiotou v Kernaghan [2014] ICR D23 P was dismissed because of his campaign to have his concerns remedied and K s escalating frustration If C is too antagonistic he leaves himself in a precarious position RECAP / CHECKLIST 1. Disclosure of information? Identify each disclosure. 2. Reasonable belief disclosure of relevant breach? Identify legal obligation or health and safety breach. 3. Reasonable belief disclosure in public interest (or disclosure in good faith if pre 25 June 2013)? 4. Causation: a) Detriment on grounds that b) Dismissal: reason or principal reason was c) Manner of disclosure? 5. Consider the legislation when advising and preparing your case. 7