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With World Whistleblower Day on Wednesday 23 June 2021 and less than six months until the deadline for EU Member States to put the EU Whistleblowing Directive into national legislation, are EU Member States ready to comply with their legal obligations?

And how might this affect the UK?

The scope and effect of the EU Whistleblowing Directive

Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law (the “EU Whistleblowing Directive”) entered into force on 16 December 2019.

It is broad in scope, including the range of organisations to which it applies, the individuals it protects, the policy areas to which is relates, the measures it requires, and the forms of retaliation that it protects against.

Perhaps the most substantial development for organisations caught by the Directive is the requirement to establish internal reporting channels and provide information about these to individuals within their organisations.  Organisations have an obligation to keep the whistleblower’s identity confidential, confirm receipt of a whistleblower’s report within seven days, and provide a response within a reasonable period which should generally not exceed three months.

The Directive sets out three levels of reports that can be made in relation to breaches of EU law.  The first is an internal report within the organisation; the second is an external report to a competent authority established by an EU Member State; and the third is a disclosure to the public directly.

Individuals are encouraged to report internally in the first instance before exploring other options, and protection will only be afforded to individuals who make a public disclosure where certain conditions have been satisfied.

Who does the Directive apply to and when must it be implemented by?

The Directive must be transposed into national legislation by all EU Member States by 17 December 2021.  It applies to:

• private legal entities with 50+ workers (as defined broadly within EU legislation);
• all public entities (however Member States have discretion to restrict the Directive’s reach to public organisations that have 50+ workers); and
• municipalities consisting of 10,000+ individuals.

The dates by which public and private entities must comply with the Directive vary depending on their size.  For those with 50 – 249 workers, the relevant date is 17 December 2023.  For those with 250+ workers, it is 17 December 2021.

Who does the Directive protect?

The Directive protects an extensive list of individuals all within a work-related context.  This includes: employees; workers; civil servants; the self-employed; shareholders; volunteers; paid or unpaid trainees; people working under the direction or supervision of contractors, subcontractors and suppliers; facilitators, colleagues or relatives of the whistleblower; and legal entities that the whistleblower owns, works for, or is otherwise connected with in a work-related context.

Importantly, the Directive protects individuals before work has commenced, during the work relationship and after it has ended.

What is required for protection to arise?

Individuals will be protected where

1. they have reasonable grounds to believe that the information they report is true at the time they report it and such information falls within the scope of the Directive; and
2. they report it either internally, externally, or by making a public disclosure.

Lastly, what are whistleblowers protected from?

Individuals are protected from ‘retaliation’.  This means any direct or indirect act or omission which occurs in a work-related context, is prompted by internal or external reporting or by public disclosure, and which causes or may cause unjustified detriment to the individual who made the report or disclosure.  This covers dismissal and detriments short of dismissal.

The application of the Directive to the UK

Following Brexit, the Directive has no legal effect in the UK.  That said, there are already calls in the UK for measures such as mandatory internal reporting channels and extending the categories of people who are protected by the legislation.  So the UK legislation might be amended to keep pace with the Directive.  Even if it is not, there are reasons UK companies might nevertheless choose to comply.

Where a UK company is part of a group of companies that has a presence in EU Member States, it may want to achieve consistency across its operations by complying with the EU requirements.  Another reason might be because the protections under the Directive are consistent with a company’s culture, ethos or environmental, social and governance initiatives.

Conclusion

The 27 EU Member States have taken a significant unifying step towards creating an environment where whistleblowers are empowered and protected.   It is not yet clear if the UK will follow suit or chart its own course.

If you want to find out more about whistleblowing, please contact Claire Dawson (ClaireDawson@bdbf.co.uk) or James Hockley (JamesHockley@bfbf.co.uk) on 020 3828 0350 or get in touch with your usual BDBF contact.

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Whistleblowers are protected under English law regardless of the sector in which they work.  However, there are special considerations and enhanced protections which apply to whistleblowers working in financial services.

When are whistleblowers normally protected?

Broadly speaking, workers are protected under the Public Interest Disclosure Act 1998 (‘PIDA’) if they are either subjected to poor treatment (which is known as being subjected to a ‘detriment’) or dismissed because they have blown the whistle.

What additional considerations apply in financial services?

FCA whistleblowing policies

The FCA has put a strong emphasis on encouraging individual and institutional accountability in recent years and its approach to whistleblowers is no exception.  As part of its broader regulatory reform, the FCA has introduced a number of policies to seek to ensure the protection of whistleblowers in financial services.

The FCA Handbook requires particular firms to observe a suite of whistleblowing rules which oblige firms to assess and escalate whistleblowing concerns, to inform staff of their rights as whistleblowers, to set up channels to facilitate whistleblowing and to appoint a ‘whistleblowing champion’ to oversee compliance with whistleblowing regulations within the firm.

Broader protection of whistleblowers under the FCA Handbook

The protection offered to whistleblowers under the FCA Handbook goes further than the ‘classic’ whistleblower protection under PIDA:

1. Who qualifies for protection – Under PIDA, only ‘workers’ can be protected as whistleblowers (meaning that the genuinely self-employed are not protected). In contrast, under the FCA Handbook, anyone can be protected as a whistleblower, regardless of their employment status.
2. The type of disclosure that is protected – To be protected under PIDA, a whistleblower must make a ‘qualifying protected disclosure’. A ‘qualifying protected disclosure’ is more limited than many people assume.  Whistleblowers must make a complaint that fits within one of six statutory categories of wrongdoing (most commonly, a breach of a legal obligation, a breach of health and safety or an attempt to cover up another category of wrongdoing).  Whistleblowers must also jump through a series of legal hoops before they are afforded protection, including showing that their protected disclosure is ‘in the public interest’.  By contrast, the definition of whistleblowing under the FCA Handbook is much broader.  A complaint about a breach of an internal policy or something that could financially harm the firm will qualify for protection, a much lower hurdle than under PIDA.

Regulatory implications for subjecting whistleblowers to a detriment

Whilst the general law already prevents individuals from subjecting whistleblowers to a detriment or dismissing them because they have made protected disclosures, the FCA Handbook goes one step further.  The Handbook states that evidence that an individual has subjected a whistleblower to a detriment could call into question both their individual fitness and propriety and that of the firm at which they work.  This, in turn, could have an impact on an individual’s status as a certified person or senior manager and, potentially, their future career.

Whilst individuals working in financial services who subject whistleblowers to detrimental treatment face potential regulatory sanctions, there is also scope under PIDA for whistleblowers to pursue claims against individuals who have subjected them to a detriment, or even given the instruction to dismiss them.

The practical implications of enhanced protections for whistleblowers

The combined effect of these rules is that, in some circumstances, there is more institutional caution around the treatment of whistleblowers than would be required under PIDA.  This can mean that individuals working in financial services are in a better position to try and ensure that their concerns are investigated and that they are protected even if, strictly speaking, they do not have legal protection as whistleblowers under PIDA.

On a practical level, these regulatory obligations can also place financial services firms in a difficult position when they are made aware of potentially reportable concerns or protected disclosures on a ‘without prejudice’ (i.e. ‘off the record’) basis.   Firms may feel that this places them in a tricky position where they are torn between complying with their regulatory duties and respecting privilege over the communications.

Nick Wilcox (NickWilcox@bdbf.co.uk) is a Partner and Rolleen McDonnell (RolleenMcDonnell@bdbf.co.uk) is a Senior Associate at specialist employment law firm, BDBF.  If you have any questions on whistleblowing in financial services, please get in touch.

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With World Whistleblowers Day on 23 June, Claire Dawson, BDBF Partner and Theo Nicou, BDBF Associate, provide some advice to prospective whistleblowers.

What is whistleblowing?

Whistleblowing is the act of a worker passing on information concerning malpractice or wrongdoing of some kind, usually witnessed in the course of their employment.  The UK legislation refers to the disclosure of such information as a “protected disclosure.”

What protections do you have as a whistleblower?

The Public Interest Disclosure Act 1998 (“the Act”) makes it unlawful for an employer to dismiss an employee if the reason or principal reason is that they have made a protected disclosure.  It is also unlawful to subject any worker to a detriment on the grounds that they have made a protected disclosure.

Protection from dismissal under the Act arises from day one of employment. This means that you do not need to have been working at your employer for any minimum length of time to be protected.

What are the requirements for a protected disclosure under UK law? 

• The disclosure must be of information that tends to show past, present or likely future wrongdoing falling into one or more of the following categories:
• • criminal offences
  • failure to comply with a legal obligation
  • miscarriages of justice
  • endangering someone’s health or safety
  • damage to the environment
  • concealing wrongdoing in the above categories
• You must reasonably believe that that the information tends to show one of the above failures and that the disclosure is in the public interest. Personal grievances are not usually covered by the Act.
• The Act encourages disclosure to your employer as the primary method of whistleblowing although there are some exceptions to this.
• A disclosure does not have to be made in good faith, but it may result in a reduction of up to 25% in any award of compensation if it is found not to be.

What steps should you take if you’re planning to make a disclosure? 

It is advisable to:

• make your protected disclosure in writing, clearly setting out your concerns. Otherwise it can be hard to evidence that it was made.
• think carefully about who to make the disclosure to e.g. is your line manager in the first instance the most appropriate person?
• review your employer’s whistleblowing policy (if they have one) before making the disclosure and follow the procedure it sets out.

What are some of the common pitfalls we see?

Often prospective whistleblowers fail to:

• clearly communicate information to their employer when they make their disclosure meaning that the disclosure may not be protected and may be open to challenge by the employer;
• put the disclosure in writing – making it harder to evidence;
• make clear that they are making a protected disclosure and that they are concerned about one of the listed categories of wrongdoing. While this is not strictly necessary, it is helpful to be as clear as possible to increase your chances of protection;
• follow their employer’s whistleblowing policy;
• act in a timely manner where they have suffered a detriment or even dismissal.

What detriments do we see whistleblowers suffer?

Whistleblowers can be subjected to side-lining, performance management and in more severe cases, disciplinary procedures or even dismissal.  Sometimes they are targeted and bullied by colleagues.

Establishing that the detrimental treatment you have received is due to the disclosure you have made is often the main challenge in whistleblowing cases.

Employers will often argue that an individual has been disciplined not because they blew the whistle, but because they have not been performing well, or have committed an act of misconduct. In short, they say it is for a reason other than your whistleblowing.

What time limits do you need to be aware of?

• Most claims will need to be brought in the Employment Tribunal within three months less one day of the dismissal or the treatment you are complaining about.

• Time limits are strict and apply even where an internal grievance process or investigation is ongoing.

• If you are thinking about making an employment tribunal claim, you will first need to notify details of your claim to ACAS within the time limit.

If you are thinking of whistleblowing, you may find it helpful to take specialist advice.

If you want to find out more about whistleblowing, please contact Claire Dawson (ClaireDawson@bdbf.co.uk) or Theo Nicou (TheoNicou@bdbf.co.uk) on 020 3828 0350 or get in touch with your usual BDBF contact.

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World Whistleblowers Day 2021 (23 June) is a day to raise public awareness about the important role of whistleblowers in uncovering and challenging malpractice and wrongdoing.  We believe it is also a day to reflect on the current state of whistleblowing law in the UK.

Campaigners will seize the day as further opportunity to raise awareness of the inadequacies in UK whistleblowing law. We saw the failure of two Private Members’ bills to complete their passage earlier this year.  One has been reintroduced and its second reading will take place later this week. Protect, the UK’s leading whistleblowing charity has been campaigning for change, saying the law is broken. BEIS has also embarked upon a Whistleblowing Review. It also remains to be seen whether the UK will implement legislation complaint with the EU Directive on Whistleblowing.

In this short article, Paula Chan, Partner at BDBF and whistleblowing expert, looks at the issues addressed by Protect’s Campaign, the Office of the Whistleblower Bill and the BEIS review.

Protect’s Campaign – Let’s Fix UK Whistleblowing Law

Protect’s campaign in 2021 –  ‘Let’s Fix UK Whistleblowing Law’ – calls on civil society to help fix the UK’s whistleblowing law. Protect has declared that the Public Interest Disclosure Act 1998 (PIDA) is out-of-date and fails to protect those who need protecting, set standards for employers to encourage speaking out and fails to offer adequate access to justice.  It calls for three urgent reforms of PIDA:

• Protection of more people: many groups of people working in the UK are excluded from whistleblowing legal protection, and the safeguarding that is provided to eligible individuals is ineffective. We support Protect’s calls for UK’s whistleblowing laws to be updated urgently to offer protection to the following five groups – self-employed, non-executive directors, trustees and governors, volunteers, job applicants, and misidentified whistleblowers.
• Standards for employers: all employers should be required to meet standards for whistleblowing and follow recognised procedures. Tougher enforcement against employers is needed for those who fail to listen or treat whistleblowers badly. We see more employers implementing better speaking out policies, appointing whistleblowing champions and training their staff on how to respond to whistleblowing concerns. Whilst good employers will already be setting standards, we believe a change in the law is needed to require greater consistency amongst employers.
• Better access to justice for whistleblowers: change is needed to reduce the financial and reputational burden whistleblowers face in the Employment Tribunal to ensure whistleblowers can enforce their legal rights. We often find ourselves instructed to litigate to improve whistleblowers’ rights. In a landmark case, we helped change the law so that a claim of detriment of dismissal could be brought against individuals and a claim of vicarious liability for that act could be brought against the employer (see Timis v Osipov [2018] EWCA Civ 2321). This improved access to justice for whistleblowers (and resulted in an award to our client totalling over £2 million). We also fought to establish that interim relief hearings should be heard in public (see the EAT case of Queensgate Investments LLP & others v Millett UK/EAT0256/20/RN). However, we would like to see better access to justice and less need for individuals like Mr Osipov and Mr Millett to embark upon litigation to improve the rights of whistleblowers. As a starting point, we’d like to see the law simplified and time limits extended for bringing Employment Tribunal claims.

Office of the Whistleblower Bill 2021 – 22

The Bill incorporates recommendations made in a 2019 report by the all-party parliamentary group (APPG) on whistleblowing. Echoing Protect’s 2021 Campaign, this said that the Public Interest Disclosure Act 1998, the UK’s whistleblowing law, had “failed to provide adequate and comprehensive protection to whistleblowers or the public”. This is the second time that the Bill has been introduced in Parliament. The second reading of the Bill is scheduled to take place on 25 June 2021.

The Bill makes provision for the creation of an Office of the Whistleblower which would have various powers including to:

• giving directions to and monitoring the activities of relevant bodies (to be prescribed in regulations) on issues such as confidentiality and the use of disclosed information
• consulting on the amending or replacing of UK whistleblowing legislation;
• being a point of contact for individuals who wish to disclose information about wrongdoing;
• creating and maintaining a panel of accredited legal firms and advisory bodies to advise and support whistleblowers;
• maintaining a fund to support whistleblowers;
• providing financial redress to individuals whose whistleblowing is believed by the office to have harmed the individual’s employment, reputation or career; and
• publishing an annual report of office activities that would be laid before Parliament.

Baroness Kramer—the Bill’s sponsor—described the reason for the Bill: “Whistleblowers are vital to uncovering abuse at an early stage and […] deterring wrongdoing. But […] the Public Interest Disclosure Act 1998 and the responsibilities of the many regulators leave huge gaps, lack consistency and suffer from complexity and confusion. The consequence is that whistleblowers often suffer retaliation and find their careers are ended. Their only recourse is to an employment tribunal […] which can drag on for years, depleting their financial resources. Informal job black-listing is common. Some regulators follow up on information vigorously, but some still treat whistleblowing as complaints from troublesome people. I propose an Office of the Whistleblower to end the fragmented approach to the problems, to sort out the often complex issues of how to best protect and support whistleblowers, and to give a safe point of contact for whistleblowers which can be clearly known and understood.”

More needs to be done to displace the notion that whistleblowers are troublemakers and we hope the Bill receives a warmer reception on its second journey. At BDBF, we often see the careers, health and lives of our clients suffer where they blow the whistle. Sometimes, we are called upon to advise at an early stage and find that many of our clients have already resigned themselves to an exit before they have blown the whistle, believing that rather than be supported for escalating wrongdoing, they will likely be victimised. This needs to change.

More also needs to be done to equip and resource regulators to ensure mistreatment of whistleblowers is addressed and to help employers put in place better training and processes to support the reporting of wrongdoing in the workplace.

BEIS Whistleblowing Review

The Department for Business, Energy and Industrial Strategy has committed to reviewing its whistleblowing protections following the publication of data by Protect which revealed that one in four COVID-19 whistleblowers who contacted its advice line were dismissed between September 2020 and March 2021.

BEIS has advised that it is considering the scope and timing of its whistleblowing review, and that it is planning to introduce a single body to enforce workers’ rights, including whistleblower protection, as part of the forthcoming Employment Bill (note, however, that the Government’s recent response on the new single enforcement body does not indicate that whistleblowing protection will be within the body’s remit). A timeframe for the review has not yet been provided.

In summary

There is no doubt that whistleblowing law needs fixing and we need a cultural shift away from a pure focus on remedies for retaliation to implementing a positive duty upon employers to develop better practices, put in place channels for speaking up and to ensure serious harm and victimisation is avoided. World Whistleblowers Day represents not only a day to reflect on the courage and sacrifices of whistleblowers, but an opportunity for employers to reflect and to take the lead on change before the law requires it of them

Paula Chan is a Partner at BDBF and a whistleblowing expert.  If you want to find out more about whistleblowing, please contact Paula on 020 3828 0350 or paulachan@bdbf.co.uk or get in touch with your usual BDBF contact.

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So often, the most important issue in employment litigation in practice is confidentiality. Gareth Brahams and James Laddie QC have co-authored a paper for ELA on when employees and employers can shield ET proceedings from public view.

Read the paper by clicking on the Image below. 

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#whistleblowing #litigation #privacy

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Feel pushed to go back to the office? How will a daily commute impact on the job being done, professional and business development? What should employees be asking their employers as the much anticipated return to the office approaches?

Emily Plosker, BDBF Senior Associate, was recently quoted on this topic by Financial News. What are your views?

Read the full article here: https://www.fnlondon.com

#covid #returntotheoffice #21June #ukemplaw

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Today, the Employment Appeal Tribunal handed down judgment in the case of Maya Forstater, who lost her job after saying that people cannot change their biological sex. It held that a belief that biological sex is immutable and not to be conflated with gender identity is a philosophical belief which is worthy of respect in a democratic society, meaning a person who expresses it has protection from discrimination under the Equality Act 2010.  The EAT found that a philosophical belief would only be excluded from protection if it was akin to Nazism or totalitarianism.

The EAT also stated that trans persons continue to have protection from discrimination and harassment under the Equality Act and employers and service providers must provide a safe environment for them. 

Claire Dawson, Partner at BDBF comments that “While this judgment relates to the expression of gender critical beliefs, the EAT’s analysis has wider implications for the treatment of different philosophical views in the workplace. It emphasises the availability of protection for a wide range of beliefs.”

For more details please visit www.bbc.co.uk/

#genderidentity #forstater #ukemplaw #discrimination

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Credit: Barney Cokeliss https://barneycokeliss.com

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Paula Chan speaks to International Banker about whether NDAs are an ‘easy fix’ for employers and considers whether they can silence an employee in any circumstance. You can read the article here: https://internationalbanker.com/tag/paula-chan/

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The 2021 Queen’s Speech was delivered on 11 May 2021.  In this briefing, we take stock of what it had to say about employment law reform.

The Queen’s Speech in December 2019 outlined the Government’s intention to bring forward an Employment Bill delivering change in a number of areas of employment law including:

• The right for workers to request a more “predictable contract”.
• Extending redundancy protection to pregnant women and returners from family leave.
• Making flexible working the default for all jobs.
• A new right to unpaid carers’ leave.

You can read more about those plans in the BDBF’s 2021 employment law tracker.  Unsurprisingly, given the onset of the pandemic, the planned Employment Bill did not materialise in 2020.  There was no Queen’s Speech in 2020.

The 2021 Queen’s Speech was delivered on 11 May 2021, but the Employment Bill was conspicuous by its absence.  The background briefing notes to the Queen’s Speech also made no mention of the Bill and referred only to two employment law matters of interest.  First, the employment tribunal process will be aligned with that of other tribunals in the Unified Tribunals structure.  Second, there are plans to bring forward measures to address racial and ethnic disparities.  In connection with this, the Government is currently considering its response to the report published by the Commission on Race and Ethnic Disparities on 31 March 2021.

Yet it appears that the Employment Bill has not (yet) been abandoned.  Just a few days after the Queen’s Speech, the Government published its response to the Women and Equalities Committee (WEC) report on the gendered economic impact of COVID-19.  The Government’s response states that the Government is still committed to bringing forward the Employment Bill “when Parliamentary time allows”, but this will not be by the end of June 2021 (as the WEC report had recommended).  This was echoed on 25 May 2021 by Paul Scully MP, Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy, when he confirmed that he still intended to bring forward the Employment Bill when Parliamentary time allows.

It’s also worth noting that the Government’s response to the WEC report also specifically states that:

• The Government will consider making the right to request flexible working a Day 1 employment right (currently, 26 weeks’ service is required) and it commits to making flexible working the default position, with a consultation to be published in due course.
• The Government plans to extend redundancy protection to pregnant women and for six months after a mother has returned to work (with similar protection for those returning from adoption and shared parental leave).

Both of these are measures which were to be included in the Employment Bill.  The response also confirms that the Government still plans to respond on the consultation on ethnicity pay reporting (which closed on 11 January 2019).

Employers may be relieved to hear that they don’t have to grapple with a raft of employment law reforms at the same time as dealing with the recovery from the pandemic and the ongoing fall out from Brexit.  However, change is likely to come as part of the Government’s “levelling up” agenda and employers should watch out for further news.  BDBF will keep you updated on developments as they are reported.

If you would like to discuss any issues arising out of this briefing please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In Commissioner of the City of London Police v Geldart the Court of Appeal held that an employer did not discriminate against a female employee when it mistakenly withheld an allowance during her maternity leave.

What does the law say?

Individuals on maternity leave are entitled to receive all of their contractual benefits while on leave, excluding pay.

The Equality Act 2010 sets out that it is unlawful for an individual to be treated less favourably than someone else because of their sex.  For individuals to succeed in such a claim they need to be able to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different from their own.

Previous case law has established the principle that discrimination on grounds of pregnancy is automatically discrimination on grounds of sex. Since pregnancy is a condition that only affects women there is no need for a claimant to find a male comparator in such cases.

What happened in the case?

Mrs Geldart was a police officer with the City of London Police and her terms and conditions of service were prescribed by the Police Regulations 2003.

In December 2016, Mrs Geldart started maternity leave. During this period, she received enhanced occupational maternity pay for 18 weeks and statutory maternity pay for a further 16 weeks.  Ms Geldart was paid her usual London allowance during the 18 weeks in which she received occupational maternity pay.  After this period, the employer ceased payment of the London allowance.  The Police believed that the London allowance formed part of her “pay”, which individuals are not entitled to receive when they are on maternity leave.

Mrs Geldart brought a claim against the Police for direct sex discrimination relating to the non-payment of the London allowance after the first 18 weeks of her maternity leave. She argued that the London allowance was not treated as “pay” under the Police Regulations 2003.  Instead, it, was dealt with separately under a section headed “allowances”.  As such, she argued it was payable throughout her maternity leave and the fact that it had not paid was because she was on maternity leave and this was inevitably because of her sex.

At first instance the employment tribunal upheld Mrs Geldart’s claim for direct sex discrimination and this was also upheld on appeal to the Employment Appeal Tribunal.

What was decided?

The Police appealed again to the Court of Appeal where it was decided that the Police had not directly discriminated on the grounds of sex.

The Court accepted that the fundamental issue was the distinction between “pay” and “allowance” in the Police Regulations 2003.  The “pay” section expressly provided that the entitlement to pay was suspended during periods of absence from work, including maternity leave.  By contrast, the “allowance” section provided that the only condition of an entitlement to an allowance was that the recipient was in office of one of the London police forces.

The Court noted that the correct approach when looking at discrimination was to focus on why the claimant had been treated in the way that she had. In this case the reason why Mrs Geldart had not received the London allowance during the whole of her maternity leave was because the Police had wrongly understood it to be a form of pay and, as such, not payable in respect of any period of absence from duty.

Therefore, the reason why it had not been paid to Mrs Geldart was simply that she was absent from work. The Court said this was distinct from being because she was absent on maternity leave.  Therefore, maternity was not the reason she stopped receiving the London allowance.

However, the Court also decided that the London Allowance did not constitute “pay” for the purposes of the Police Regulations 2003. Therefore, Ms Geldart had been entitled to receive the London allowance for the duration of her maternity leave and this money was owed to her.

What does this mean for employers?

Although fact-specific, this decision reminds employers to check that maternity policies are crystal clear about entitlements during maternity leave, particularly where complex remuneration arrangements are in place.  Although genuine mistakes should not result in liability for direct discrimination, as here, they can still lead to time-consuming and costly disputes, damage the relationship with the employee and, potentially, cause wider reputational damage.  Employers can avoid mistakes by ensuring that those with responsibility for determining entitlements during maternity leave (and similar forms of leave) understand both the internal rules and the impact of equality law.

Commissioner of the City of London Police v Geldart

If you would like to discuss any issues arising out of this decision please contact Hannah Lynn (hannahlynn@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In Sinclair v Trackwork Ltd the Employment Appeal Tribunal (EAT) determined that it was unfair to dismiss an employee who caused friction in the workforce as a result of the way he undertook mandatory health and safety activities.

What does the law say? 

S100(1)(a) of the Employment Rights Act (ERA) states that where the reason or principal reason for dismissal is that the employee was carrying out health and safety activities (having been designated to do so), such dismissal will be automatically unfair.  This protection is similar to that offered to whistleblowers.  If an employer dismisses an employee because he or she blew the whistle, then the dismissal will be automatically unfair.

In the case of Panayiotou v Kernaghan, the EAT considered whether the manner in which the employee pursued his whistleblowing complaints was genuinely separable from the protected disclosure itself. The EAT held that, in certain circumstances, it will be permissible to separate out factors or consequences following the making of a protected disclosure from the making of the protected disclosure itself.  

What happened in this case?

Mr Sinclair was a track maintenance supervisor who was given a mandate to implement a new safety procedure.  His colleagues were unhappy with his approach, considering him to be over-cautious and overzealous.  However, they were unaware that he had been tasked with implementing the new procedure.

Given the soured relationship in the workforce, Trackwork Limited dismissed Mr Sinclair. The reasons given included that Mr Sinclair had created friction and upset by the manner in which he had gone about implementing the new procedure.

Mr Sinclair brought a claim for unfair dismissal under s.100(1)(a) of ERA.  The employment tribunal rejected his claim, holding that the dismissal was not because of the health and safety activities he was performing, but because of the manner in which he carried out the activities, which caused the upset.  Mr Sinclair appealed to the EAT.  He argued that the employment tribunal’s conclusion was perverse given that there was “a clear and unbroken causal link between [his] carrying out of health and safety activities and his dismissal.”

What was decided?

The EAT explored whether the health and safety activities were genuinely separable from the manner in which they were carried out.  It concluded that this could be the case where the conduct was, for example, “wholly unreasonable, malicious or irrelevant to the task in hand”. 

However, the EAT held that Mr Sinclair had not exceeded his mandate and his actions were not unreasonable, malicious or irrelevant.  Therefore, his manner of performing the activities could not be separated from the activities themselves.

The EAT held that the very mischief which section 100(1)(a) seeks to guard against is the fact that carrying out health and safety activities will often be unwelcomed and even resisted. Allowing an employer to distinguish the activities from the upset they caused, and relying on the latter to dismiss the employee, would undermine the protection.

Accordingly, the EAT substituted the tribunal’s decision to one of automatically unfair dismissal.

What does this mean for employers?

As a result of the pandemic, employers have had to prioritise health and safety activities and deliver significant changes in the workplace.  This case illustrates that the protection offered to employees performing health and safety activities is broad and there are very limited circumstances in which an employer can say that the manner in which such activities were carried out is distinguishable from the activities themselves.

Whilst this case relates to automatic unfair dismissal in respect of health and safety activities, the same principles can be read across to the more common case where an employee has blown the whistle on some unlawful practice.  It is important to remember that the disruptive manner in which an employee pursues a whistleblowing complaint will not necessarily be distinguishable from the protected disclosure itself.  This is a fine balance to strike and, of course, getting it wrong in a whistle blowing case can result in liability for an uncapped award of damages.

Sinclair v Trackwork Limited

If you would like to discuss any issues arising out of this decision please contact Blair Wassman (blairwassman@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In the recent constructive unfair dismissal case of Flatman v Essex County Council, the Employment Appeal Tribunal (EAT) held that a tribunal misapplied the law by failing to identify whether a fundamental breach of contract occurred at any point up to the employee’s resignation. In so doing, it reaffirmed the principle that once a fundamental breach has been committed, it cannot be cured.

What does the law say?

Employees have the right to resign and claim that they have been constructively unfairly dismissed where their employer has committed a fundamental breach of a term of their contract of employment (either an express or an implied term).  The employee must resign in good time and in direct response to the specific breach.

For these legal rights to arise, three conditions must be met:

• First, the employer’s breach must effectively demonstrate an intention to no longer to be bound by the contract going forward.
• Second, the breach must be the reason for the employee’s resignation.
• Third, the employee must not have affirmed the contract after the breach has occurred. This happens, for example, where employees continue to work for their employer or delay their resignation before claiming constructive unfair dismissal.

Irrespective of the employee’s actions following the breach, if the employer’s breach is fundamental, it cannot be cured – i.e. there is nothing that the employer can do to redeem the position.

What happened in this case?

Ms Flatman worked as a Learning Support Assistant in a school maintained by her employer, Essex County Council. From September 2017, Ms Flatman was required to support a disabled pupil at the school.  This involved her undertaking daily weight-bearing and lifting tasks.  It was identified at an early stage that Ms Flatman required manual handling training in order to undertake her work safely. Despite assurances that this would be arranged, and Ms Flatman repeatedly asking for such training, it was not provided.

In December 2017, Ms Flatman developed back pain. This became increasingly severe and Ms Flatman was eventually signed off work on 1 May 2018 for three weeks.  She returned to work on 22 May 2018.  Upon her return, the headteacher of the school advised Ms Flatman that she would not be required to lift the pupil, she would be assigned to another class in the next school year and training would be provided.  However, Ms Flatman resigned and claimed constructive unfair dismissal.

What was decided?

The Employment Tribunal dismissed the claim, holding that the Council was not in fundamental breach of its implied duty to take reasonable care of Ms Flatman’s health and safety. Instead, it found that the communications when Ms Flatman returned to work demonstrated genuine concern for her health and safety.

The EAT allowed Ms Flatman’s appeal. By failing to provide training and requiring her to lift the pupil on an ongoing basis, the employer had breached the implied duty to provide Ms Flatman with a safe work environment. Having reached this decision, the EAT concluded that the tribunal had erred by looking only at the overall picture at the point of Ms Flatman’s resignation when assessing the breach. Instead, the focus should have been on whether there had been a fundamental breach at any point during the relevant period, and, if there had, whether Ms Flatman had affirmed the contract.

The EAT concluded that, at the latest, the breach had become fundamental when Ms Flatman was signed off sick.  Ms Flatman had repeatedly requested training and the employer had repeatedly promised it.  The risk of harm increased throughout the period, with the result that she was signed off work on 1 May 2018 having suffered significant harm.  It could not be said that Ms Flatman had affirmed the contract between 1 May 2018 and her resignation.

The EAT also made an interesting point concerning the assessment of whether a breach is fundamental in relation to different implied terms. It suggested that the heightened risk profile connected with the employer’s implied duty to provide a safe working environment for employees is the reason why positive statements of intention or good attitude on the part of an employer have less significance than they might do where the breach is of the implied term of mutual trust and confidence (which does not necessarily have such a serious risk profile).

The EAT ultimately held that if the tribunal had correctly applied the law to its finding of fact, only one outcome was possible. Therefore, it upheld the appeal and substituted a finding of constructive unfair dismissal without remitting the case for a rehearing.

What does this mean for employers?

Whilst the legal position is that a fundamental breach of contract cannot be cured, the commercial position might well be slightly different. Even when the legal position is irretrievable, an employer’s attempt to make good will often be enough to resolve the matter with the employee and avoid a dispute. This employer was probably unlucky.

Flatman v Essex County Council

If you would like to discuss any issues arising out of this decision please contact James Hockley (jameshockley@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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