Employers continue to be vicariously liable for “detriment of dismissal” claims brought by employee whistleblowers, for now, at least

The Court of Appeal has ruled that Timis and Sage v Osipov binds Employment Tribunals to permit claims brought by employee whistleblowers for the “detriment of dismissal” against co-workers and also against employers on a vicarious liability basis but only on the basis of precedent. They disagreed with the reasoning in Osipov and the question may now go to the Supreme Court. For now though this means employees complaining that they have been dismissed for whistleblowing only have to meet a lower legal threshold to succeed and can sue managers in an individual capacity.

What protections do whistleblowers have in the workplace?

Since 1998, whistleblowers at work have been protected from dismissal (employees only) and detrimental treatment (employees and workers). When the law was first introduced, only detrimental treatment meted out by the employer was covered.  Further, if the detrimental treatment in question amounted to a dismissal, an exclusion clause in the law meant that employees (but not workers) could not frame it as a detriment claim.  Instead, they had to pursue an unfair dismissal claim.   

This was significant not least because the threshold for succeeding in a detriment claim is lower than in a dismissal claim.  In other words it was harder for a claimant to complain about being dismissed than otherwise being treated unfavourably for being a whistleblower.

In 2013, detriment protection was expanded to cover detrimental treatment committed by co-workers.  This change meant that a co-worker could be personally liable, and the employer could be vicariously liable for the actions of the co-worker (although the employer had a defence if it could show that it had taken “all reasonable steps” to prevent the detrimental treatment).  However, the exclusion clause which prevented employees from bringing detriment claims about dismissal was left unchanged. 

In 2018, in the landmark case of Timis and Sage v Osipov (Osipov) in which BDBF acted for the successful Claimant, the Court of Appeal considered whether an employee was entitled to bring a whistleblowing detriment claim against a co-worker, where the detriment was the dismissal, and where the compensation sought included loss of earnings flowing from the dismissal.  In that case the employee did not claim that the employer was vicariously liable for that detriment because the employer was in administration.

The Court of Appeal, agreeing with the Employment Appeal Tribunal (EAT) and the Employment Tribunal, ruled that the purpose of the law was to protect whistleblowers, and, therefore, it was appropriate to construe the exclusion clause in such a way as to provide protection rather than deny it. 

The Court said the exclusion clause only prevented employees from bringing direct detriment of dismissal claims against an employer.  However, it did not prevent detriment of dismissal claims against co-workers.  Nor did it prevent the employer from being vicariously liable for such a claim (albeit that this was not a live issue before the Court because the employer in that case was insolvent).  The Court concluded that if employees were prevented from bringing such claims by the exclusion clause, this would lead to an unsatisfactory situation where workers (e.g. independent contractors or LLP members) could bring such claims, but employees could not and that the employee who was treated badly at work but not dismissed had a lower legal threshold to meet than the employee who had suffered the ultimate form of retaliation: dismissal.

The Court acknowledged that its interpretation did not produce “a particularly elegant result” insofar as it meant that a dismissed whistleblower who was an employee could claim the employer was directly liable for their dismissal under the unfair dismissal provisions and vicariously liable for the detriment of dismissal under the detriment provisions.  The inelegance was inherent in the fact that the causation test differs between the two claims (being higher in unfair dismissal claims), as does the possible compensation (with no injury to feelings award available in an unfair dismissal claim).  However, the Court said these “awkwardnesses” were insufficient to justify a construction that would result in more serious anomalies, and which would be contrary to the underlying policy of the law.

What happened in these cases?

The key facts of Rice v Wicked Vision Ltd (Rice) and Barton Turns Developments Ltd v Treadwell (Treadwell) are the same.  Both claimants were dismissed allegedly after having blown the whistle.  Both brought unfair dismissal claims against the employer.  As the litigation unfolded, both sought to amend their claims, arguing that they had been subjected to the detriment of dismissal by their co-workers and that their employers were vicariously liable for such detriments.  In neither case did the claimants seek to bring the detriment of dismissal claim against the co-workers as individual respondents.  The aim of the amendment in each case was presumably to benefit from the lower threshold for liability in detriment claims. In Rice, the employer opposed the amendment on the basis that a vicarious liability claim for detriment of dismissal could not proceed where no claim had been made against the co-worker.

Decisions of the Employment Tribunal

In Rice, the Tribunal took a wide view of Osipov, holding that it permitted the amendment.  It also held that it was not necessary for a detriment of dismissal claim to have been brought against a co-worker in order to bring to bring the vicarious liability claim against the employer.

In Treadwell, the Tribunal refused the amendment on the basis that the exclusion clause meant that a detriment claim against an employer had to be about something other than a dismissal.  The Tribunal’s view was that the decision in Osipov was confined to the potential liability of individuals only and the exclusion clause prevented a claim that the employer was vicariously liable for the detriment of dismissal.  As such, the Tribunal took a narrower view of Osipov than the Tribunal in Rice.

Decisions of the EAT

In Rice, the employer appealed to the EAT, again arguing that the claim could not proceed without a concurrent claim against the co-worker.  The EAT considered that it was not necessary to bring a detriment claim against the co-worker.  However, the EAT overturned the decision of the Tribunal, concluding that the exclusion clause prevented the vicarious liability claim against the employer.  Notably, the EAT said it would be odd if Parliament had banned detriment of dismissal claims directly against employers but, at the same time, allowed them to be vicariously liable for the detriment of dismissal by a co-worker, since in virtually every case a dismissal has to be executed by a co-worker.  As such, the EAT took a narrow view of Osipov, holding that it only determined that detriment of dismissal claims may be brought against co-workers.

In Treadwell, the EAT allowed the employee’s appeal, taking a wide view of Osipov as meaning that detriment of dismissal claims could be brought against co-workers and against employers on a vicarious liability basis.  It held that the exclusion clause only excluded direct detriment of dismissal claims against employers.

Unsurprisingly, both decisions were appealed to the Court of Appeal, and the appeals were heard together.

What did the Court of Appeal decide?

Delivering a unanimous judgment, the Court of Appeal ruled that Osipov was binding authority for the proposition that employers could be vicariously liable for detriment of dismissal claims.  Accordingly, the Court ruled that the amendments should have been allowed in both claims.  However, the Court reached this decision with a great deal of reluctance, suggesting that a further appeal to the Supreme Court may lie ahead.   

The meaning of the exclusion clause

The Court’s reluctance was rooted in the fact that it considered the exclusion clause was unambiguous in preventing detriment claims about dismissal.  Where a detriment amounts to a dismissal within the meaning of the legislation, the exclusion clause disapplied the entire detriment provision, meaning that detriment of dismissal claims are not possible against anyone, whether employer or co-worker.

The Court rejected the argument that “dismissal” only covers dismissals by the employer, and that there exists the possibility of a dismissal by a co-worker, which would sit outside the exclusion clause (because it would not be a “dismissal” within the meaning of the legislation).  The Court rejected this approach for three reasons:

  • First, the Court rejected the argument that the exclusion clause only applied to dismissals by the employer as meaningless because it said a dismissal is always the act of the employer – it ends the contract between the employer and employee.  Where the employer is a limited company the dismissal can only ever be effected by a co-worker, and the Court did not accept there was a relevant legal distinction between a dismissal by the employer and a dismissal by a co-worker. 
  • Second, the Court observed that under the vicarious liability provisions anything done by a co-worker is treated as having been done by the employer.  The legal effect of this is that the employee is, therefore, dismissed by the employer and, in turn, that act will “amount to a dismissal” within the meaning of the legislation and so the exclusion clause applies.
  • Third, the question is not about primary or vicarious liability, the correct question is simply: what does the act amount to? If it amounts to a dismissal then the employer is liable for it and all detriment claims about the dismissal are barred, including against a co-worker.

The decision in Osipov

Although it considered the exclusion clause was abundantly clear, the Court had to grapple with the decision in Osipov, which had permitted detriment of dismissal claims.  The Court disagreed with the decision in Osipov for several reasons including:

  • It ignored the clear and unambiguous statutory wording and improperly downplayed the statutory text in favour of a perceived purpose. 
  • It wrongly assumed that Parliament or the draftsman made mistakes.
  • It misconstrued the statutory purpose and ignored the fact that Parliament deliberately chose to have distinct remedial schemes for employees and workers.
  • It wrongly treated dismissal by a co-worker as distinct from dismissal by an employer.
  • Its conclusion that the exclusion clause only barred direct detriment of dismissal claims against an employer because the “identical remedy” of unfair dismissal was available was fundamentally flawed.

However, the Court said that, despite its own construction of the legislation, it was bound by the decision in Osipov.  Importantly, it concluded that Osipov had ruled that detriment of dismissal claims are permissible against co-workers and that employers may be vicariously liability for such claims (thus taking a wide view of the decision unlike the Tribunal in Treadwell or the EAT in Rice).  The Court said it was bound by the doctrine of precedent to give the same interpretation to the exclusion clause as was given in Osipov, even though the context in the present cases was slightly different.

Accordingly, despite the Court’s own view of the meaning of the law, it ruled that the exclusion clause did not prevent detriment of dismissal claims against the employer on a vicarious liability basis.  Therefore, the employees succeeded, and their claims were allowed to proceed.

The Court observed that it was “plainly unsatisfactory” that the construction of the legislation had produced conflicting decisions at three levels of court, but noted that this could only be resolved by the Supreme Court or through a change to the legislation.

What does this decision mean for whistleblowers and employers?

This decision underlines the impact and importance of Osipov, for now at least.  It continues to bind Tribunals to permit detriment of dismissal claims against co-workers and against employers on a vicarious liability basis.  The exclusion clause does not bite to prevent either type of claim.  Further, as the Court identified in this case, no concurrent claim against a co-worker is needed in order to bring a vicarious liability claim.

Of course, the Court of Appeal has fired a warning shot about the validity of the decision in Osipov. In light of the Court’s profound misgivings about Osipov, it seems likely that permission to appeal to the Supreme Court would be given if sought.  Whether there will be a further appeal remains to be seen (and it should be noted that Wicked Vision Ltd is currently in administration).   However, even if there is no further appeal in this case, it seems inevitable that the point will arise in another case in due course.  And when it does, there is a good chance that we will see a “leapfrog appeal” from the EAT to the Supreme Court, given that the remedies available to whistleblowers is a matter of general public importance. 

In the meantime, it is business as usual for whistleblowers and employers.  Employees who are dismissed for having blown the whistle should continue to bring unfair dismissal claims against their employer and should always explore the possibility of detriment of dismissal claims as well, pleading them where appropriate. 

Employers wishing to avoid vicarious liability for such claims should take all reasonable steps to prevent such detriment.  In practice, this will mean taking steps to ensure that anyone involved in the dismissal of a whistleblower is not materially influenced by the whistleblowing (essentially, the causation test in detriment claims).  Codes of conduct should set out the standards expected from managers and emphasise the importance of honest and ethical behaviour in all dealings, and the consequences of failure.  Ideally, a programme of whistleblowing training should support and reinforce this.  In some sectors, relevant training may be mandatory.  For example, the FCA requires financial services firms to provide tailored whistleblowing training to various stakeholders, including managers, which should explain that victimisation of whistleblowers is prohibited. 

(1) Rice v Wicked Vision Ltd (Protect Intervening); (2) Barton Turns Developments Ltd v Treadwell

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

Innocent decision-makers cannot be personally liable for the detriment of dismissing a whistleblower

In Henderson v GCRM Ltd & Ors, the Employment Appeal Tribunal has considered whether it is possible to hold an “innocent” decision-maker liable for the detriment of dismissing a whistleblower, in circumstances where another individual has manipulated or tainted the process motivated by the whistleblower’s actions.

Background

Under the Employment Rights Act 1996 (ERA), whistleblowers are protected in the following key ways:

  • It is automatically unfair to dismiss them if the reason or principal reason is that they made a protected disclosure (Section 103A).

  • It is unlawful for their employer to subject them to any detriment through any act (or deliberate failure to act) on the ground that they made a protected disclosure (Section 47B(1)). This claim is not available against the employer where the detriment is dismissal, as the remedy is an automatic unfair dismissal complaint under Section 103A (Section 47B(2)). Nevertheless, the employee may have a claim for detriment for any other actions taken by their employer leading up to the dismissal. 

  • It is unlawful for any co-worker or agent to subject them, in the course of that co-worker’s employment (or agency), to any detriment through any act (or deliberate failure to act) on the ground that they made a protected disclosure (Section 47B(1A)). Under Timis v Osipov [2018] EWCA Civ 2321, this claim is available against an individual even where the detriment is dismissal, and the employer can become vicariously liable for the actions of that individual.  The employer may have a defence if they took all reasonable steps to prevent the co-worker’s actions. For further information, please see our briefing on Osipov here.

Under the previous case of Royal Mail Ltd v Jhuti, the Supreme Court found that a protected disclosure can still be the principal reason for an employee’s dismissal even if the disclosure was hidden from the dismissing officer, and therefore a claim under Section 103A can succeed on that basis. Unlike in earlier cases where only the motivations of the decision-maker were said to be relevant, the Supreme Court in Jhuti confirmed that if the decision-maker is given false reasons to dismiss by someone who is themselves motivated by the fact that the employee has blown the whistle, the Tribunal can look past those false reasons to establish the underlying motivation. In effect, if the underlying motivation to dismiss the employee is the protected disclosure, employers cannot evade liability by hiding that fact from a good faith disciplinary decision-maker.

For further information on the Jhuti case, please see our prior briefing here.

What happened in this case?

Ms Henderson was employed as an embryologist by GCRM Limited, a regulated clinic based in Glasgow providing fertility services and care, following a transfer under TUPE from Nuffield Hospital in Glasgow in September 2018.

Following the transfer, in March 2019 Ms Henderson began to raise concerns on several occasions regarding issues impacting the standard of patient care at GCRM. In particular, she was concerned regarding the low levels of available staff and inadequacy of training, which she felt was leading to excessive pressure for both nurses and the laboratory staff. Ms Henderson considered that patients were experiencing poor success rates and that there was a likelihood of errors and reportable incidents, and that patients were being misled about the standard of service. She continued to express concerns into August 2021 and raised a grievance in September 2021 on the basis that she felt singled out and unfairly treated. The grievance was not upheld, and an appeal submitted by Ms Henderson was not heard.

In October 2021, Ms Henderson was informed of disciplinary allegations relating to a reportable regulatory incident and an alleged failure to follow reasonable management requests. She was told that such concerns could amount to “serious negligence/gross misconduct and/or lead to a loss of trust and confidence in your ability to perform your role” and was suspended from her role.

The original disciplinary manager was set to be Mr Tomnay, who was Ms Henderson’s line manager and who was therefore aware of her complaints. It was later changed to Ms Tracey, the Managing Director – UK, who had recently joined the group by the time of the disciplinary hearing in January 2022 and was employed by a separate entity. Ms Henderson was ultimately dismissed by Ms Tracey in February 2022 for “numerous and collective examples of poor performance and leadership in fulfilling the duties of [her] role”, and received payment in lieu of notice. An appeal against the decision was unsuccessful.   

Ms Henderson pursued a claim of: (i) automatic unfair dismissal against GCRM; and (ii) for the detriment of dismissal against GCRM and each of Mr Tomnay and Ms Tracey individually.

Employment Tribunal’s decision

In the first instance decision, the Employment Tribunal determined that the disclosures made by Ms Henderson relating to staffing levels were protected under Sections 43A and 43B ERA, as she had genuinely believed that they tended to show breaches of legal obligation that were in the public interest (and that belief was objectively reasonable).

The Tribunal concluded that Mr Tomnay and the HR representative, Ms Young, had been motivated to initiate and conduct a disciplinary investigation against Ms Henderson because of her protected disclosures. Further, they found that Ms Tracey was extensively informed and guided in the disciplinary process by Mr Tomnay and Ms Young; the decision to instigate disciplinary proceedings had been Mr Tomnay’s, and the process had only been handed over to Ms Tracey as he was no longer available to manage it. Ms Tracey admitted having little to know knowledge of the disciplinary allegations, which had been decided by Mr Tomnay and the HR representative, admitted that she had relied on them for shaping the process and providing information, and confirmed that she had spoken to Mr Tomnay during adjournment of the disciplinary hearing.

Having made the above findings of fact, the Tribunal’s judgment was that:

  • Under Jhuti, Ms Tracey could be ‘imputed’ with the knowledge of Mr Tomnay and Ms Young, as they had influenced her to a significant degree. The protected disclosures had therefore had a material influence on Ms Henderson’s dismissal, and the claim against Ms Tracey for detriment based on Ms Henderson’s dismissal therefore succeeded (Section 47B(1A)). As she was an agent of GCRM, GCRM were also liable for her actions (Section 47B(1B)). 

  • It was not possible to claim directly against GCRM for detriment based on protected disclosures where the detriment alleged was dismissal.

  • Whilst the protected disclosures had been a material influence, they had not been the sole or principal reason for the dismissal and therefore the dismissal was not automatically unfair under Section 103A. It was nevertheless unfair under ordinary unfair dismissal principles, as there had been significant procedural failings and substantive issues with the findings and sanction.

  • Mr Tomnay did not subject Ms Henderson to the detriment of dismissal, as he had only had an indirect influence, therefore the claim against him could not succeed.

EAT’s decision

Both Ms Henderson and GCRM appealed against the Tribunal’s findings.

Ms Henderson’s Appeal

Ms Henderson alleged that the Tribunal had failed to properly consider the reason for the dismissal for her automatic unfair dismissal claim (Section 103A).

The EAT agreed with this, and confirmed that once Jhuti had been raised by Ms Henderson, the Tribunal should have made clear findings about whether or not Mr Tomnay had improperly manipulated Ms Tracey or created a false pretext which he induced Ms Tracey to adopt. If it was found that he did manipulate or intervene in the process, the Tribunal should then have considered what part that ultimately played in Ms Tracey’s decision to dismiss. Ms Henderson’s automatic unfair dismissal claim was therefore remitted to the same Tribunal to consider those questions, as it was not an inevitable conclusion that the dismissal would have been automatically unfair.

Ms Henderson also attempted to argue that Mr Tomnay could be held responsible for her dismissal as a result of his involvement, on the basis that the term “dismissed” should include actions causing or contributing to dismissal. The EAT did not agree with this, as this would blur the line between pre-dismissal detriment and the detriment of dismissal itself. No pre-dismissal detriment by Mr Tomnay had been alleged, and he had not dismissed Ms Henderson, therefore the complaint could not succeed.

GCRM’s Appeal

GCRM argued that the Tribunal had erred in concluding that Osipov and Jhuti meant that Ms Tracey, an “innocent” dismissing manager, could be found personally liable under Section 47B(1A) and therefore make the employer also liable under Section 47B(1B).

The EAT agreed with this, noting that Jhuti had only been concerned with an employer’s liability for automatic unfair dismissal under Section 103A and the state of mind that can be attributed to the employer. The EAT considered that there was no reason to extend this analysis of a “composite approach” to liability to personal liability under Section 47B(1A), in particular because it could not have been the intention of Parliament to impose unlimited liability on individuals who have not been personally motivated by the making of protected disclosures. Both Jhuti and Osipov had taken a purposive approach to legislation in order to provide the claimant with an effective remedy, but without liability being imposed on an innocent party.

The EAT therefore set aside the judgment against Ms Tracey for detriment consequently the judgment against GCRM for detriment.

What does this mean for employers?

The judgment in Henderson has offered some helpful clarification as to the circumstances in which decision-makers can be imputed with the knowledge or motivations of others in the context of whistleblowing. In particular:

  • For an automatic unfair dismissal claim under Section 103A, it is possible for the Tribunal to look at whether or not the decision-maker may have been manipulated or influenced in a way that means that, even if they were not personally aware of the protected disclosures, it was still the sole or principal reason for dismissal.

  • For detriment claims against individuals under Section 47B(1A) (and consequent liability for employers under Section 47B(1B)), the Tribunal should not impute knowledge to otherwise ‘innocent’ decision-makers in a way that makes them personally liable (and their employer vicariously liable) for whistleblowing detriment.

Henderson v GCRM Ltd & Ors [2025] EAT 13

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Rose Lim (RoseLim@bdbf.co.uk) or your usual BDBF contact.

Government publishes outcome of whistleblowing law review highlighting areas for future reform

A new report sets out the findings of a detailed Government-commissioned review into the state of whistleblowing law in the UK.  The report also contains numerous suggestions on how the law may be extended to encourage whistleblowing and protect whistleblowers. 

Back in March 2023 the Conservative Government launched a review of the UK’s whistleblowing legal framework.  The purpose of the review was to take stock of the whistleblowing framework and consider whether it was meeting its original objectives, namely to:

  • provide a route for workers to blow the whistle about certain types of wrongdoing;
  • protect those who have blown the whistle from detrimental treatment and/or dismissal, and provide a route of redress where it does happen; and
  • support wider cultural change, in which the benefits of whistleblowing are recognised and promote action by employers and others.

On 14 July 2025, the Department for Business and Trade published a detailed report setting out the observations, emerging themes and suggestions for change raised during the review process.

Key findings and suggestions for change

Legal definitions

The UK whistleblowing framework is built upon certain framework terms including “reasonable belief”, “public interest” and “worker.”  The report finds that these terms are often seen as subjective, vague, inconsistent and narrow, resulting in uncertainty and confusion.   More broadly, it is noted that some individuals are excluded from whistleblowing protection

The suggestions for change in this area include:

  • widen the existing definition of “worker” to cover those currently excluded from protection (e.g. job applicants) or extend protection to anyone raising a concern in the public interest, regardless of their status;
  • creating a statutory code of practice in relation to “public interest”; and
  • creating a statutory definition of “whistleblower”.

Disclosure channels

While some organisations have internal frameworks in place which facilitate reports, barriers to making disclosures remain, including accessibility, trust, confidentiality, senior management commitment, and independence.   Further, gaps in the “prescribed person” regime (which allows workers to blow the whistle to certain prescribed persons outside of their organisation) are present, with no specific prescribed person to report to in certain sectors such as retail, construction, technology and manufacturing.  Even where there is a prescribed person, individuals generally have difficulty identifying the correct prescribed person to contact.

The suggestions for change in this area include:

  • creating obligations for organisations to have reasonable procedures to receive and respond to concerns (and offences for failing to do so);
  • creating further sector-specific prescribed persons or creating a central prescribed body (or similar office or ombudsman); and
  • allowing information to be shared more freely between prescribed persons.

Raising concerns

The organisational response to concerns is variable and often depends on the resources available and appetite to investigate. Even where investigations are conducted, there are questions over matters such as consistency, independence, capability to conduct the investigation, engagement and conflicts of interest.  Issues also arise in relation to the management of an individual’s expectations about the potential outcome and how informed the individual is kept about those outcomes.

The suggestions for change in this area include:

  • creating national standards on providing proactive protection and responding to concerns (with consequences for non-compliance);
  • establishing board or most senior level accountability for effectiveness of frameworks; and
  • establishing independent oversight of response and management of individuals.

Protections for whistleblowers

The protectionsunder the legal framework provide redress through the Employment Tribunal system for workers who suffer a detriment or are dismissed for blowing the whistle.  However, individuals either do not understand the scope of the protections or remain deterred from blowing the whistle for fear of retaliation.   Within organisations, anonymity and confidentiality are key protections, although there are limits to what organisations can do to protect anonymity in practice.

The suggestions for change in this area include:

  • making it a civil or criminal offence to harm a whistleblower or to not fulfil responsibilities to protect whistleblowers;
  • imposing greater consequences for organisations found to be victimising individuals than currently applied by Employment Tribunals, and potentially for this to be governed outside of Employment Tribunals;
  • creating an independent body to investigate retaliation against whistleblowers with the power to fine employers and dissuade the organisation (and others by proxy) from retaliating;
  • holding senior management accountable for detriment caused to whistleblowers under their management; and
  • providing protections for whistleblowers raising concerns with journalists or the media.

Redress

There are concerns that the current system of redress (through the Employment Tribunals) is not balanced or fair and does not deliver meaningful outcomes or sufficient financial rewards.  Further, Employment Tribunals are concerned with workplace fairness, not the substance of the concern raised. As a result, whistleblowers may feel they “win the battle but lose the war”.

The suggestions for change in this area include:

  • amending time limits associated with interim relief and filing an Employment Tribunal claim to prevent premature adversarial situations;
  • providing additional financial support to whistleblowers;
  • reversing the burden of proof within the proceedings;
  • awarding costs to whistleblowers if they win their case; and
  • introducing public fines for organisations that fail to comply with Employment Tribunal judgments.

Awareness and guidance

While many employers are aware of guidance on whistleblowing, some find it unhelpful or confusing.  And other employers remain unaware – indeed, the majority of employers participating in the review said they did not refer to Government guidance in this area.

The suggestions for change in this area include:

  • introducing more accessible guidance for individuals;
  • introducing better guidance and education for organisations and prescribed persons; and
  • more frequent communication between prescribed persons and from the Government to prescribed persons.

Cultural change

Even with better laws, many challenges are cultural, namely, fear of being labelled a troublemaker, lack of support, management defensiveness, and stigma.

The suggestions for change in this area include:

  • creating a central body for whistleblowing;
  • improving mental health support for whistleblowers; and
  • consideration of disincentives and incentives, for example implementation of a United States style reward system for whistleblowers.

Next steps

Under the Employment Rights Bill, the law will be changed to provide that disclosures about actual or likely sexual harassment are included as one of the types of wrongdoing about which a whistleblowing disclosure may be made.  That change is due to come into force in April 2026.  Given the very wide scope of the Employment Rights Bill, it seems unlikely that the numerous recommendations contained in the report will be taken forward any time soon.   However, there is certainly no shortage of “food for thought” for a Government committed to enhancing and extending workers’ rights. 

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

Can independent HR consultants be liable for whistleblowing detriment claims as “agents” of the employer?

In the recent case of Handa v Station Hotel (Newcastle) Ltd and others, the EAT held that independent HR consultants may be viewed as agents of an employer for the work they are instructed to do.  However, here, the HR consultants were not asked to, and did not, decide whether to dismiss and so were not liable as agents in a whistleblowing detriment claim concerning the dismissal.

What happened in this case?

The Claimant was a director of a company operating in the hotel sector (the Respondent).   After the Claimant blew the whistle on alleged financial impropriety, several members of staff raised grievances alleging that he had bullied and harassed them.

The Respondent instructed an independent HR consultant, Mr Duncan, to investigate the grievances.  He upheld two complaints and recommended that disciplinary action be taken against the Claimant.  A second independent HR consultant, Ms McDougall, was instructed to conduct the disciplinary hearing.  She produced a report which indicated that the Respondent was entitled to dismiss the Claimant for gross misconduct, but she did not go as far as recommending that it do so.  The Respondent went on to suspend the Claimant and remove him as a statutory director of the company.  A few days later he was summarily dismissed. His appeal was rejected.

The Claimant brought a whistleblowing dismissal claim against the Respondent.  He also brought whistleblowing detriment claims against two of the Respondent’s directors, and also against Mr Duncan and Ms McDougall, arguing that they were “agents” of the Respondent and, as such, liable for the detrimental treatment i.e. the dismissal.  However, the Employment Tribunal struck out the claims against Mr Duncan and Ms McDougall on the basis that they were not agents of the Respondent, and the claims had no reasonable prospect of success.  The Claimant appealed that decision.

What was decided?

The EAT held that an HR consultant tasked with investigating, reporting and concluding a grievance or disciplinary could, in principle, be an agent of the employer.  Traditionally, it is understood that an agent usually has the power to affect the principal’s legal relationships with third parties.  However, this is not necessarily the case in the employment context.  Here, the key question to ask is whether the services the person is contracted to provide relate to a significant aspect of the employment relationship, rather than the employer’s business activities.  Where a third party is instructed to run a process closely related to the employment relationship (such as a grievance or disciplinary process) there is no reason why they cannot be an agent of the employer, although the assessment is fact-sensitive in each case. 

However, in this case, neither Mr Duncan nor Ms McDougall had been contracted to make the decision about whether to dismiss the Claimant, and nor did they do so.  The mere fact that the Respondent had relied upon their work to support its position that the dismissal was fair did not mean they were liable for the detriment of dismissal.  Nor did the fact that their work was part of the chain of events which led to the dismissal decision mean they were liable for the dismissal.

The appeal was dismissed.

What does this mean for employers?

There are many reasons why an employer may wish to appoint an independent HR consultant to conduct a grievance or disciplinary process.  For example, where a very senior member of staff is implicated in the complaint, an external person brings a neutral perspective and so reduces the risk of perceived or actual bias.  It might also be desirable to appoint an HR consultant where there is no dedicated HR team or the team is overstretched and/or where specialist knowledge and experience is required.

This decision will be helpful to employers wishing to reassure HR consultants that they will not be on the hook for dismissals – provided that they do not, in fact, make or implement the dismissal decision.  To protect the HR consultant, employers should take the following steps:

  • Be clear about the remit of the HR consultant’s role: spell out what they are being engaged to do, for example, advise on a process, conduct an investigation or chair a hearing.

  • Ensure the HR consultant’s impartiality is protected: ensure that the independence of the HR consultant is not compromised by being too closely aligned with management (e.g. by acting as an adviser to the business on the process and as an investigator).  Consultants should be wary of cases where they feel they are being used to “rubber-stamp” a predetermined decision.

  • Retain decision-making responsibility: ensure that the company, not the HR consultant, makes the final disciplinary or grievance decisions.  HR consultants should be careful to stick to their remit and resist any pressure to tell the employer what to do.

  • Transparency and disclosure: remember that any written communication with the HR consultant will need to be disclosed in litigation unless it is legitimately protected by legal privilege.  Both parties should avoid making comments that suggest bias or predetermined outcomes.

Even with all these safeguards in place, HR consultants should remember that they could be liable as agents of the employer in respect of the work that they have been instructed to do.  For example, in this case, if the Claimant had argued that the handling of the grievance process or disciplinary hearing was detrimental to him (as opposed to complaining about the dismissal itself), the HR consultants could have been liable given that they were instructed to run those processes.  Therefore, HR consultants must take care to act fairly and transparently.  It would be wise to keep clear records of the entire process, separate to any fact-finding or recommendations, as this will help defeat any claims attacking the process.

Handa v Station Hotel (Newcastle) Ltd

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

Court of Appeal confirms that whistleblowing protection for job applicants remains very limited

In the recent case of Sullivan v Isle of Wight Council, the Court of Appeal considered the issue of whether an external job applicant was protected from detriment relating to whistleblowing.

What happened in this case?

The Claimant applied unsuccessfully for posts with Isle of Wight Council (the Council) in 2019. After being rejected, the Claimant filed an online crime report with the police alleging that she had been the subject of a verbal assault during an interview. She also alleged that one of her interviewers had been submitting fraudulent accounts to a charitable trust.  She also reported these issues to the CEO of the Council and to her MP. She relied upon her letter to her MP as a protected whistleblowing disclosure.

An investigation was carried out by the Council and the Claimant’s complaint was dismissed. The investigating officer advised that, given the Claimant’s behaviour and the exceptional circumstances of the case, and as per the Council’s complaints policy, she was not allowing the Claimant the usual right afforded to employees to refer the matter to a more senior officer for review. This was on the grounds of protecting the Council’s employees.

The Claimant complained to the Employment Tribunal that she had been subjected to a detriment, namely the refusal to allow her to seek a further review of her complaint. She argued that the whistleblowing provisions of the Employment Rights Act 1996 were incompatible with Article 14, read with Article 10 of the European Convention of Human Rights (the Convention), in so far as they protected workers and applicants for NHS posts but not job applicants generally. The relevance of Article 14 was that it prohibits discrimination affecting the rights and freedoms set out in the Convention (including, via Article 10, the right to protection from detriment relating to whistleblowing) on several grounds, including the ground of “other status”. The Claimant contended that being a job applicant fell into this “other status” category.

The Tribunal dismissed the Claimant’s claim, finding that her position was not materially analogous to internal job applicants (i.e. already workers/employees) or to NHS job applicants, who are specifically protected under the legislation due to the NHS’s almost unique characteristics as an employer and for reasons of patient safety.

The Claimant appealed to the Employment Appeal Tribunal (EAT), which upheld the Tribunal’s decision.  The Claimant appealed to the Court of Appeal. The Secretary of State for Business and Trade and the whistleblowing charity Protect were given permission to intervene.

What was decided?

The Court of Appeal dismissed the claim. It disagreed with the Tribunal and the EAT, and held that being a job applicant could amount to “other status” for the purposes of Article 14 of the Convention. It was found that a job applicant was an acquired characteristic, resulting from something that an individual had chosen to do. If a person was subjected to treatment on the ground that they were a job applicant, that was capable of being treatment on the ground of some other status.

However, the Court of Appeal agreed that the Claimant was not in a materially analogous position to either workers or applicants for NHS posts who were protected by the whistleblowing detriment provisions.  The position of someone seeking work was materially different from someone in work, and the extension of whistleblowing protection to applicants for jobs with NHS employers was intended to deal with a specific and urgent problem, enabling a culture where health service staff could make protected disclosures about matters concerning patient safety and treatment without fear of retaliation. Since the NHS comprises different legal bodies and entities, the aim was to ensure that people who might want to move from one NHS body to another would not be deterred from making protected disclosures.

The Court of Appeal also opined that in this case, any difference in treatment caused by the legislation would have been objectively justified since it pursued a legitimate aim and the means adopted to achieve that aim were appropriate and proportionate.

What does this mean for employers?

This situation is likely to be rare in practice for employers, but it is nonetheless helpful to know that employers can take a robust stance on complaints from dissatisfied job applicants which might amount to whistleblowing. However, this case does not change the fact that under the Equality Act 2010, all job applicants remain protected from unlawful discrimination by a prospective employer on the grounds of a protected characteristic (age, sex, race etc).

Parliament had decided twice already that the whistleblowing legislation should not be extended to protect job applicants generally – firstly, when drafting the Public Interest Disclosure Act 1998, and, secondly, in 2015 when Parliament rejected a proposed amendment which would have extended protection to a person who “is or has been a job applicant”. The Court of Appeal said in this case that substantial weight should be given to Parliament’s judgement.

However, the CEO of Protect, the whistleblowing charity who intervened in the case, expressed disappointment in the outcome. Justin Madders MP (Parliamentary Under-Secretary for State for Business and Trade) indicated that he was to meet Protect to discuss the issues on which it is campaigning, and the government was aware of the “long-overdue requirement to look at whistleblowing law”. Whether this case will cause Parliament to look again at whistleblowing protections remains to be seen.

Sullivan v Isle of Wight Council 

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Connie Berry (connieberry@bdbf.co.uk), Margaret Welford (MargaretWelford@bdbf.co.uk) or your usual BDBF contact.

Trainee solicitor left unsupervised and given the workload of two qualified lawyers was unfairly dismissed for blowing the whistle 

A Tribunal has ruled that a trainee solicitor left unsupervised in a chaotic working environment was unfairly dismissed for blowing the whistle on the way the firm was run.  Although she only had ten months’ service, she was able to claim automatic unfair dismissal and was awarded over £36,000 compensation.

What happened in this case?

Ms Kaur was employed as a trainee solicitor by Gillen De Alwis Solicitors (the firm).  Before she even started work, the firm began to hand case files over to her to work on.  Upon starting employment, she received no meaningful induction. The day after she started, Ms De Alwis, one of the founding partners of the firm, handed over to her the caseload of two qualified lawyers. During her first few weeks of employment, Ms De Alwis put pressure on Ms Kaur to complete tasks, despite the fact that she had sustained a back injury and was in pain.  Ms Kaur was told that her training contract would be in jeopardy if she did not get things done.  

Ms Kaur’s back injury caused her to take sick leave between 19 July and 24 September 2021.  During her sickness absence the firm required her to carry out work in order to be paid Statutory Sick Pay.  She was not paid her normal salary for the time that she worked.  When she returned to work, the department was still operating in a chaotic manner.  There was no appropriate management or supervision and Ms Kaur and an intern were frequently left unsupervised to deal with matters and approve contracts without them being checked by a qualified lawyer.

After her return to work, Ms Kaur was also subjected to bullying and harassing treatment.  She was criticised for not completing work which she had, in fact, completed.  She was unreasonably blamed for delays on client matters.  She was screamed at on the telephone and spoken to in a belittling, rude and insulting way.  She was also moved between departments with no notice.

Ms Kaur raised her concerns about the way the practice was being run to senior colleagues and partners within the firm on numerous occasions between October 2021 and February 2022.  She also contacted the Solicitor’s Regulatory Authority (SRA) by telephone on three occasions and eventually made a written report to them.  In early March, Ms Kaur told the firm’s newly appointed HR manager that she wished to raise a formal grievance and that she was considering raising the matter with the SRA (when, in fact, she already had).  Around the same time, Ms Kaur saw a doctor in relation to work-related stress and anxiety and went on to take two weeks’ sick leave.  

She submitted a grievance on 11 March 2022 but received no response.  She submitted a data subject access request on 5 April 2022.  Three days later, she was summarily dismissed without any investigation or disciplinary procedure having been followed.  Various reasons were given including that she had failed to follow reasonable instructions and was incapable of being trained or meeting the practice skill standards.  Ms Kaur claimed that she had been automatically unfairly dismissed for blowing the whistle. The firm went into voluntary liquidation at the end of 2023.

What was decided?

The Employment Tribunal found Ms Kaur to be committed to her profession and an intelligent and diligent person.  She had not been given proper training or supervision and had been held to an unreasonably high standard.  It found that any failures in the service provided to clients were primarily down to the firm’s failure to manage its practice appropriately or to train and supervise its staff.   The Tribunal concluded that Ms Kaur had not been guilty of gross misconduct entitling the firm to summarily dismiss her.

The Tribunal went on to find that the disclosures that Ms Kaur had made amounted to protected disclosures.  They contained information and Ms Kaur reasonably believed that they tended to show that the firm was in breach of its duties (in particular, certain sections of the SRA’s Code of Conduct for Solicitors).  She also reasonably believed that it was in the public interest to raise these matters.  In particular, she was concerned about the negative impact on clients of the firm who were receiving a poor service.

Having found that she had made protected disclosures, the question was whether they were the principal reason for her dismissal.  In light of the fact that the firm did not carry out an investigation or disciplinary process, and the finding that Ms Kaur was not guilty of misconduct, the Tribunal drew an inference that the firm did not genuinely consider this to be a misconduct case.   Coupled with the timing of the dismissal, the Tribunal was satisfied that it was more likely than not that the real reason for the dismissal was the protected disclosures.

The Tribunal awarded compensation of £36,062, which included an uplift to compensation of 25% to reflect the firm’s “complete failure” to comply with the Acas Code of Practice on disciplinary and grievance procedures.  The compensation award was relatively low as a result of the fact that the firm went into voluntary liquidation, meaning Ms Kaur’s employment would have come to an end around that time in any event.  

What are the learning points?

Whilst the facts of this case are at the more extreme end of the scale, it does demonstrate the need for employers to have effective practices for managing and supervising junior staff in place, including inductions, workload management and day to day supervision.  A failure to do is likely to generate a stressful working environment, leading to disengagement, sickness absence and employment claims.  Here, the claimant was able to rely on breaches of a regulatory code in order to qualify as a whistleblower.  However, non-regulated employees could argue that an unmanageable and chaotic working environment and/or bullying endangers the health and safety of staff, and this may well be enough to get them over the hurdle of qualifying as whistleblower.  

The decision also underlines the need for employers to follow proper dismissal procedures for new staff in appropriate cases.  Here, the claimant had under two years’ service and so could not bring an ordinary unfair dismissal claim.  As a result, it appears that the firm dispensed with any form of investigation or disciplinary procedure prior to dismissal and ignored the minimum requirements in the Acas Code.  However, the firm failed to spot that the claimant had unlocked the door to bring an “automatic” unfair dismissal claim as a whistleblower – a claim which may be brought from Day 1 of employment.  Employers wishing to dismiss employees with under two years’ service should always check that there are no aggravating factors present which may mean the employee could still bring claims about the dismissal.  It should also be remembered that the new Labour Government has indicated that it plans to remove the two-year service requirement for unfair dismissal claims.  If this happens, proper dismissal procedures will need to be followed in every case.

Although it is unlikely that the claimant will ever recover her compensation, the outcome of this case is still extremely valuable to her.   She gave evidence to the Tribunal that the stigma of having been dismissed directly contributed to her being turned down for employment.  This decision means she may now say that she was unfairly dismissed, and, indeed, that she was commended by the Tribunal for her professionalism and ability.  

Kaur v Gillen De Alwis Solicitors Ltd (in Creditor’s Voluntary Liquidation)

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

World Whistleblowers Day 2024 – why you should remain confident to speak up

World Whistleblowers Day, originally created by a group of non-governmental organisations in 2019, is an annual opportunity to reflect on the importance of an individual’s right to blow the whistle and the importance of the Public Interest Disclosure Act 1998 (PIDA) in fostering an open workplace culture and preventing wrongdoing. 

Recent news stories have highlighted the poor treatment of whistleblowers across a range of sectors. In the NHS, there are claims that the careers of talented doctors and nurses have been ruined after blowing the whistle. Employees at Fujitsu were afraid of being ‘dragged over the coals’ had they raised concerns about the Horizon software used by Post Office sub-postmasters. It is no surprise then that potential whistleblowers still feel apprehensive about speaking up in 2024.

The Telegraph, for example, recently reported that over 50 doctors and nurses have been targeted after raising concerns about patient safety and that whistleblowing is not welcomed by management. Headlines refer to NHS managers using a ‘playbook of tactics’ to silence whistleblowers, “designed to break you.”

However, not only in the NHS, but in every industry, it remains important for individuals to be able to raise concerns and for management to foster a culture in which they are able to do so. A ‘qualifying disclosure’ must relate to:

  • a criminal offence; 
  • a breach of a legal obligation; 
  • a miscarriage of justice;
  • someone’s health and safety being in danger; or
  • potential damage to the environment. 

Feeling able to raise concerns of this nature, where you have a reasonable belief that there has been a miscarriage of justice, is essential to prevent wrongdoing and individuals should be aware of the legal protection available to them when doing so.

So, by way of reminder, it is 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 (see https://www.bdbf.co.uk/thinking-of-whistleblowing/ for more detail about what constitutes a protected disclosure). Detriments in this context can include being marginalised, subjected to disciplinary action, overlooked for a promotion or denied a bonus. Employees who have been dismissed for whistleblowing at work or resigned in response to detrimental treatment due to whistleblowing, may also have additional claims for automatic unfair dismissal.

There are limitations to whistleblower protection in the UK. There is no state body tasked with the oversight of whistleblowing measures, no requirement for an organisation to investigate concerns raised (save for in certain sectors, such as financial services) and no fine or other penalty/punishment enforceable against those who choose to subject the whistleblower to detriments. In addition, protection does not extend to genuinely self-employed individuals – the injustice of this distinction was recently highlighted when it became clear that, because the Post Office sub-masters were self-employed, they would not have been protected by the legislation. 

We remain optimistic that despite the likely (and imminent) change of government, the principles contained in the Whistleblowing Bill 2023, which had its first reading in the House of Commons earlier this year, may be taken forward by a new Labour Government. The Bill proposed, among other things, introducing new civil and criminal offences (punishable by fine or imprisonment) for subjecting a whistleblower to a detriment and establishing an Office of the Whistleblower, an official body tasked with enforcing such punishment – thereby adding teeth to PIDA and establishing a real deterrent to the decision makers in these circumstances. 

With the Labour Party’s Manifesto commitment to strengthen protection for whistleblowers, any future iteration of the Bill may also see the protections of PIDA expanded to self-employed contractors who remain equally at risk of suffering from detrimental treatment, reflecting the wider protection afforded to whistleblowers in the EU through the EU Whistleblowing Directive.

The legislation should allow individuals to feel confident to raise concerns in the knowledge that the law is there to protect them – as eloquently put by the charity Protect; ‘it is the insiders within organisations who have the power to expose wrongdoing and improve business, and society, for the better.’ 

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact BDBF Associate Julia Gargan (JuliaGargan@bdbf.co.uk) or your usual BDBF contact.

Employees who report bullying and harassment of other staff may qualify as whistleblowers 

Two recent Employment Tribunal decisions have made it clear that employees who report the bullying or harassment of other members of staff may qualify as whistleblowers in law, meaning that they will have special protection from detriment and dismissal from Day 1 of their employment.  

What happened in these cases?

Case 1 – Cameron-Peck v Ethical Social Group Ltd and others 

The claimant was employed by Ethical Social Group as the CEO of one of its two subsidiaries, Wndr Social.  She was employed from 1 August 2021 until she resigned with immediate effect on 28 October 2021.  

The claimant received complaints from staff members about bullying by Ms Alexander, the CEO of Fluttr, the other subsidiary company.  On 3 September 2021, around one month into her employment, the claimant sent a WhatsApp message to Mr Pullam, the Founder and Group CEO, telling him about staff contacting her in tears about the bullying and rudeness they had experienced and the way they had been treated.  On 4 September 2021, the claimant expanded on her concerns in a telephone call with Mr Pullam.  On 6 September 2021, she sent an email to Mr Pullam explaining her concerns further, setting out 19 numbered examples of Ms Alexander’s bullying behaviour.  She did not receive any response or follow-up to the message, discussion or email.  

On 15 October 2021, the claimant had a telephone conversation with Mr Pullam, which she secretly recorded.  She asked Mr Pullam why there had been no follow-up to her complaints about the bullying. Mr Pullam said they had discussed it and asked her what further discussions she wanted. The claimant said nothing had been done and that the behaviour had carried on. Mr Pullam asserted that he did address the bully and he asked others who all said they had not seen or experienced any bullying.  After the phone call, the claimant was removed from certain meetings, ostensibly so she did not have to come into contact with Ms Alexander.  However, this left her feeling isolated and vulnerable.  

On 18 October 2021, the claimant attended a video meeting with the Chief People Officer and Chief Talent Officer of Ethical Social Group.  In the course of that discussion, the claimant revealed she had recorded the telephone call with Mr Pullam.  On 19 October 2021, the claimant was removed from a company WhatsApp group and suspended pending a disciplinary investigation. She was not told why she had been suspended.  The claimant resigned the next day giving three months’ notice.  The claimant was then invited to a disciplinary hearing to be held on 5 November 2021.  She was not told of the allegations of misconduct that she had to answer.  In the meantime, a colleague told the claimant that she had been asked to write a new HR policy stating that the making of covert recordings constituted gross misconduct.  The colleague said she thought the claimant was being “set up” and that the newly created policy was going to be used to dismiss the claimant for gross misconduct.

On 28 October 2021, the claimant resigned with immediate effect.  She did not have sufficient service to bring an “ordinary” unfair dismissal claim.  However, she claimed that had been automatically unfair dismissed for blowing the whistle (for which no minimum period of service is required).  At the hearing, the Employment Tribunal had to decide whether the claimant’s disclosures about bullying amounted to protected disclosures, which would attract protection as a whistleblower.  

Case 2 – Mysakowski v Broxborn Bottlers Ltd

The claimant was employed by Broxborn Bottlers Ltd between 7 November 2022 and 19 April 2023.  On 13 April 2023, around five months into his employment, he raised concerns with a manager about an incident of sexual harassment he had witnessed.  He said he had seen a senior male manager massaging the shoulders and neck of a junior female employee.  The claimant said he understood that the female employee was uncomfortable, and that he felt that it was inappropriate conduct.  When asked to name the individuals involved, he refused on the basis that the female employee involved had asked him not to.  The manager told the claimant that the company could not investigate the matter unless it knew who was involved.  The claimant said he did not feel he could name the individuals and asked whether, instead, the company could issue a general reminder to staff about appropriate conduct in the workplace.  

The claimant’s employment was terminated on 19 April 2023.  He claimed that he had been automatically unfair dismissed for blowing the whistle.  A Preliminary Hearing was held to determine whether the claimant had, in fact, made a protected disclosure.  

What was decided?

In order for a disclosure to amount to a “protected disclosure” it must pass the following test:

  1. The disclosure must be a disclosure of information, which means it must convey facts and not just allegations.
  2. The disclosure must relate to one of six defined types of malpractice/wrongdoing and the worker must reasonably believe that the information disclosed tended to show such malpractice.  Included in the six types of malpractice are reports about breaches of any legal obligation or dangers to the health and safety of any individual.
  3. The worker must reasonably believe that the disclosure is in the “public interest”.  Public interest is not defined in law, but relevant factors include the numbers of people whose interests are affected, the nature of the interests affected, the nature of the wrongdoing and the identity of the wrongdoer.
  4. The disclosure must be made to one of a number of specified persons and made in the right way.

The public interest test was introduced in 2013 and was intended to prevent workers from claiming that grievances about breaches of their own employment contracts were breaches of a legal obligation capable of amounting to a protected disclosure.  The cases discussed in this article concerned grievances about breaches of someone else’s employment contract or rights.  In both cases, the employers sought to argue that this meant the disclosures were not in the “public interest” and, therefore, were not protected disclosures.

In Cameron-Peck, the Employment Tribunal approached the disclosures about the bullying of staff not as disclosures about breaches of a legal obligation, but, rather, as disclosures that tended to show that the health or safety of individuals had been, was being or was likely to be endangered.  The fact that the claimant had explained how she and other employees were upset by the bullying was sufficient to show this.  The health and safety of employees is an important matter and several staff had been affected.  As such, it was reasonable for the claimant to have believed the disclosures were in the public interest. The Tribunal concluded that the claimant’s disclosures about Ms Alexander’s bullying passed the necessary tests and were protected disclosures.  The claimant went on to win her claim and was awarded compensation of £185,000.

In Mysakowski, the Employment Tribunal approached the disclosures as disclosures which tended to show a failure to comply with a legal obligation, namely, obligations under the Equality Act 2010.  The Tribunal concluded that the claimant believed that the information disclosed was in the public interest and it was reasonable for him to have held that belief.  It noted that he had given evidence to the effect that he had heard rumours about the senior male manager’s conduct towards female employees and wanted to raise what he had witnessed to try to protect others in the workplace. Given these findings, the Tribunal concluded that the claimant made a protected disclosure, meaning his claim may now proceed to a final hearing on the merits of his claim.

What do these decisions mean for employers?

These decisions highlight that complaints about the mistreatment of others may amount to protected disclosures attracting whistleblowing protection.  Although the complaints may, on their face, concern individual employment relationships, they may still engage matters of public interest.  

As far as bullying is concerned, while there is no statutory protection against bullying per se, it stands to reason that bullying is going to harm the wellbeing of the victim and risk their health and safety.  Alternatively, it could be viewed as a “breach of a legal obligation”, such as the Health and Safety at Work Act 1974, or the implied contractual duty to take reasonable care of an employee’s health and safety at work.  The fact that only one or two staff may have been affected will not mean the disclosure is outside the public interest.  Ultimately, it will come down to what the employee reasonably believed at the time of making the disclosure, but it is not difficult to see how a disclosure aimed at protecting people from a serial bully would be enough to pass the test.

As far as harassment or other forms of discrimination are concerned, this would represent a potential breach of the Equality Act 2010.  Depending on the circumstances, it could also be something which risks health and safety and/or breaches health and safety law.  Again, the fact that a small number of staff are affected (even just one, as in Mysakowski) will not make a difference.  It will likely be reasonable for an employee who witnesses an act of discrimination or harassment from a senior manager to say they believed that the disclosure was aimed at protecting other staff from such treatment in the future. 

Practically speaking, this means that employers in this situation should consider dealing with such complaints under internal whistleblowing procedures (where there is one) instead of, or in addition to, an individual grievance procedure.  For organisations subject to the FCA’s and PRA’s whistleblowing framework, this will mean, amongst other things, ensuring that the confidentiality of the whistleblower is preserved, escalating the concerns appropriately both internally and to the FCA or PRA, providing appropriate feedback to the whistleblower and including information about the matter in the annual report to the Board.  

It is important to identify when an employee might acquire whistleblowing protection. If a whistleblower is mistreated as a result of having made a protected disclosure, they will be entitled to bring a detriment claim seeking compensation for losses flowing from that detriment and for injury to feelings.  In the event that they are dismissed, they will be entitled to claim automatic unfair dismissal from Day 1 of their employment and seek uncapped compensation for losses flowing from the dismissal.  Further, an employee who has blown the whistle about discrimination or harassment could also have a separate claim for victimisation under the Equality Act 2010 if they are subjected to detrimental treatment for having raised those concerns.

Cameron-Peck v Ethical Social Group Ltd and others

Mysakowski v Broxborn Bottlers Ltd

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Samantha Prosser features on Parrhesia Tapes podcast – ‘Whistleblowing in the NHS’

BDBF Managing Associate Samantha Prosser recently featured on ‘Whistleblowing in the NHS’, the fourth episode of the Parrhesia Tapes, a series dedicated to amplifying the voices of whistleblowers and shedding light on the vital work needed across various sectors and institutions.

Samantha joined Sue Allison, who blew the whistle on a Senior Radiologist within her department who repeatedly failed to diagnose women who had breast cancer at NHS Morecambe Bay Trust.

Samantha has specialist experience in advising private and NHS consultants from leading hospitals on whistleblowing and discrimination claims.

View the full podcast below.

Sam 1
https://www.youtube.com/watch?v=OE6CjsB6UhM

The psychology of whistleblowing: why do some blow the whistle and others not? 

Whistleblowing is the act of speaking up to expose unethical or unlawful activity within an organisation. What motivates this act can vary from a sense of duty, a desire to protect others from harm, or a belief in the importance of transparency and accountability. So, what drives an individual to blow the whistle? In this briefing, we consider some of the key psychological factors that influence whether or not someone will blow the whistle on wrongdoing.

The decision to blow the whistle can be a difficult one since it often involves going against the norms and values of an organisation and brings with it the risk of retaliatory action. What are the factors that affect whether or not an individual will blow the whistle?

Research suggests that the following two factors may mean someone is more likely to blow the whistle:

  • Personal integrity: individuals with a strong sense of personal integrity and a commitment to ethical behaviour are more likely to blow the whistle. Research suggests that whistleblowers are driven by a belief that they are doing the right thing and have a duty to expose wrongdoing. In addition, whistleblowers may experience a sense of guilt or shame from being associated with an employer who engages in unethical behaviour and feel driven to speak up.

  • Courageousness: individuals who witness unethical or unlawful activity within their organisation may be afraid to speak up for fear of losing their job or facing other negative consequences. This fear is not unfounded. Studies have shown that whistleblowers are often subject to retaliation from their colleagues, supervisors and even the general public. It takes a great deal of personal courage to speak up in spite of these risks. 

Other factors may deter someone from blowing the whistle, including:

  • Loyalty: another factor intrinsic to the psychology of whistleblowing is the concept of loyalty. Employees are likely to struggle with the decision to come forward, feeling torn between loyalty to their employer and their sense of moral duty. This can lead to a great deal of internal conflict and anxiety, and, ultimately, may deter someone from speaking up.

  • Fear of isolation: whistleblowers are often seen as “troublemakers” and may be ostracised by their colleagues. This can lead to feelings of loneliness and a lack of social support, which, in turn, can be damaging to mental health. Faced with this, many will decide to stick with the herd rather than stand alone and speak up.

In conclusion, the psychology of whistleblowing is a complex and multi-faceted issue. Fear, loyalty, and isolation are all factors that can prevent employees from coming forward with concerns. Despite these challenges, those who decide to blow the whistle play a critical role in exposing wrongdoing in organisations. It is important for employers to embed a supportive culture that values transparency and encourages employees to come forward with concerns without fear of retaliation. In addition, employers should provide whistleblowers with the resources and support they need to navigate the difficult process of speaking up.

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss a whistleblowing issue, please contact info@bdbf.co.uk, or your usual BDBF contact.

World Whistleblowers’ Day: recent developments in whistleblowing law in the UK

To mark World Whistleblowers’ Day on 23 June 2023, we take stock of some of the most important recent developments in whistleblowing law in the UK and consider what they mean for whistleblowers.

RECENT LEGISLATIVE DEVELOPMENTS 

Review of the UK’s whistleblowing framework

On 27 March 2023, the Government announced the launch of a review of the current UK whistleblowing legal framework (you can read our detailed briefing on the review here). The purpose of the review is to take stock of the UK’s existing whistleblowing framework and consider whether it is meeting its original objectives. The terms of reference of the review state that the review will look at the following core questions:


 

  • How the whistleblowing framework facilitates disclosures.
  • How the whistleblowing framework protects workers (and the review will also consider the definition of “worker” for whistleblowing purposes).
  • Whether information about whistleblowing is available and accessible to workers, employers and others.
  • What have been the wider benefits and impacts of the whistleblowing framework on employers, prescribed persons and others.
  • What best practice looks like in terms of responding to disclosures.


 

The review is expected to conclude by Autumn 2023 and could, eventually, lead to improvements to the legal landscape and greater protection for whistleblowers.

Private Members’ Bill seeks ambitious reforms

The Protection for Whistleblowers Bill 2022 -23 is currently on its passage through Parliament. It is a Private Members’ Bill, sponsored by the Liberal Democrat peer, Baroness Kramer. The aim of the Bill is to increase protection and support for whistleblowers. The Bill seeks to introduce an ambitious set of reforms to the legal landscape including: 


 

  • Making it easier to blow the whistle (for example, it would expand the types of malpractice about which a protected disclosure could be made, it would widen the persons to whom a disclosure could be made, and it would extend protection to individuals who were intending to make a disclosure).
  • Introducing an independent “Office of the Whistleblower”, whose role would be to provide information and support to whistleblowers, set minimum standards for whistleblowing policies, enforce compliance and have the power to make interim relief orders of any sort it considered appropriate.
  • Introducing civil penalties for persons and organisations that failed to comply with notices and orders of the Office of the Whistleblower. Individuals could be fined up to £50,000 and organisations up to 10% of annual global turnover, capped at £18 million.
  • Making the mistreatment of whistleblowers a criminal offence punishable by a fine or a maximum 18-month prison term.
  • Protecting whistleblowers against criminal or civil action.


 

As a Private Members’ Bill (which does not have the Government’s backing) it is unlikely that the Bill will ever make its way onto the statute books. However, it could help the cause of whistleblowers by drawing attention to the need for better protection of whistleblowers and it may also influence future Government legislation. This is particularly pertinent given the current review of the legal framework.

Expansion of the list of “prescribed persons” to whom individuals can blow the whistle

In order for whistleblowing disclosures to acquire protection in law they must be made to certain specified categories of people. For example, the worker’s own employer or the person responsible for the failure in question. However, it also includes people prescribed by law, known as “prescribed persons”. On 15 December 2022, the Public Interest Disclosure (Prescribed Persons) (Amendment) Order 2022 (SI 2022/1064) expanded the list of “prescribed persons”. 

New prescribed persons were added, namely, Social Work England, Members of the Scottish Parliament, the Scottish Public Services Ombudsman, Environment Standards Scotland and the Natural Resources Body for Wales. Further, the types of matters for which certain bodies are prescribed was expanded. This affected the Financial Conduct Authority, the Gas and Electricity Markets Authority, the Health and Safety Executive and the Secretary of State for Health and Social Care. 

Although technical, these changes give workers wishing to blow the whistle more options about where to direct their disclosure, at the same time ensuring that they acquire legal protection as a whistleblower.

RECENT CASE LAW DEVELOPMENTS 

Blowing the whistle: conduct related to a whistleblowing disclosure may be separated from the disclosure itself

One recent decision that is not particularly helpful to whistleblowers is the Court of Appeal’s decision in Kong v Gulf International Bank (UK) Ltd (you can read our detailed briefing on this decision here). Here, Ms Kong blew the whistle and was later dismissed for her conduct when discussing the disclosure with a colleague. 

The Court said that, in principle, there can be a distinction between the whistleblowing disclosure itself and the worker’s conduct when making the disclosure. The role of a Tribunal is to identify the reason or reasons that operated on the mind of the decision maker when deciding to dismiss. Provided a Tribunal is able to identify a feature of the conduct that is “genuinely separable” from the whistleblowing disclosure, then the principal reason for the dismissal will be the conduct, not the whistleblowing. In this case, the Court agreed with the Tribunal that Ms Kong had been dismissed for her conduct. This decision is concerning for whistleblowers, who often deliver unwanted messages which can result in tense or difficult conversations. Whistleblowers concerned about this risk should seek legal advice on how to make the disclosure and manage the aftermath. 

Seeking interim relief after dismissal: applications should be heard in public 

Interim relief is only available to claimants bringing a small number of specific claims for automatic unfair dismissal in the Employment Tribunal, including whistleblowing dismissals. If successful in an interim relief application, the employer must either reinstate the claimant in their previous role (or reengage them in a suitable alternative role), pending the determination of the claim at the final hearing. If the employer is not willing to do this, the Tribunal will make a ‘continuation order’, meaning the respondent is ordered to pay the claimant as if their employment contract was still continuing, until the final hearing. Sums paid to a claimant under a continuation order are irrecoverable. This means that a claimant does not have to repay the salary paid under the order even if they ultimately lose their claim. This makes interim relief a potentially very valuable remedy for claimants. 

In Queensgate Investments LLP v Millet the EAT ruled that applications for interim relief should be heard in public, save where an order is made to restrict publicity (you can read our detailed briefing on this decision here). Orders restricting publicity are not made lightly – a risk that the employer will suffer commercial embarrassment is not enough. Rather, the employer would need to demonstrate that publicity could have catastrophic consequences for the business, such that justice could not be done unless the hearing was held in private. This is the first appellant authority on this point and is of particular importance given the public interest nature of whistleblowing cases.

Pleading a whistleblowing claim before a Tribunal: claimants should focus on the protected disclosures that gave rise to the alleged detriments or dismissal 

In Frewer v Google UK Ltd and others the EAT reminded whistleblowers to think carefully about how they put their claims before the Tribunal – the focus should be on quality not quantity. In obiter remarks, the EAT Judge said claimants in whistleblowing claims should focus on pleading only the protected disclosures that gave rise to the alleged detriments or dismissal. Here, Mr Frewer had pleaded close to 100 alleged protected disclosures.

The EAT said that parties to a dispute should have regard to the fact that the Tribunal’s resources are limited and must be fairly distributed among the many parties that have a right to have their claims heard. The Judgecommented that those drafting whistleblowing complaints often feel that the greater the number of disclosures and detriments that are asserted, the greater the prospects of success, when, in fact, the converse is often the case. 

The “public interest” test: public interest can be engaged even where a disclosure concerns a small number of people

In Dobbie v Felton t/a Feltons Solicitors, the EAT underlined that disclosure of information relevant to only one person may still be a matter of “public interest”. In this case, a consultant solicitor had made disclosures about alleged overcharging by the firm at which he had worked. The Employment Tribunal decided that these disclosures had not been made in the public interest, because the disclosures concerned one client only. As such, it was a private matter between that client and the firm. 

The EAT said this was wrong. The disclosures could have advanced the general public interest in solicitors’ clients not being overcharged, and solicitors complying with their regulatory obligations. Further, a belief in the public interest did not have to be the primary motivation for making the disclosures. Disclosures do not cease to be protected merely because they are made in the context of other concerns (in this case, the client’s prospects of recovering costs from its opponent). This decision is useful for whistleblowers since it underlines that the threshold of “public interest” is not set unachievably high – public interest can be engaged even if the information relates to a small number of people. 

Compensation for whistleblowers: substantial compensation awarded for career loss, psychiatric injury and injury to feelings 

In October 2022, an Employment Tribunal awarded a substantial sum to a whistleblower to compensate for detriments and dismissal suffered because she had blown the whistle. In Jhuti v Royal Mail Group, the Tribunal found that the claimant had suffered a “lengthy and intense period of bullying” over five months, before she went off sick and was then eventually dismissed. The Tribunal recognised that this treatment had “destroyed the claimant’s life”. She suffered with PTSD and severe depression, and her relationship with her teenage daughter broke down. The medical evidence was that she would never work again.

The Tribunal awarded:


 

  • financial compensation for career long loss until the age 67.
  • £55,000 general damages for psychiatric injury.
  • £40,000 for injury to feelings.
  • £12,500 aggravated damages to reflect the employer’s oppressive conduct at the remedy hearing.
  • A 0.5% uplift for unreasonable failure to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures.


 

Although this case was at the more severe end of the spectrum, the decision shows that Tribunals are empowered to make significant awards of compensation to whistleblowers where justified. 

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

Whistleblowing in the NHS

This year marks the 25th anniversary of the Public Interest Disclosure Act 1998, the legislation which incorporated protection for workers who report wrongdoing into the Employment Rights Act 1996. 

To mark World Whistleblowers’ Day on 23 June 2023, we look at whistleblowing in the NHS. 

History of whistleblowing in the NHS

Whistleblowing in the NHS is a recurring hot topic, and not just on World Whistleblowers’ Day: a safe and fully functioning National Health Service is a life and death matter.

Whistleblowing in the NHS in nothing new. Over recent years numerous enquiries have been established to investigate significant issues within certain Trusts. The most well-known of these was the Francis Review. This arose following the failings at the Mid-Staffordshire Hospital where it was estimated that between 400 and 1,200 patients died between 2005 and 2009 as a result of poor care. It is often described as one of the worst examples of hospital care of recent times. In the review, Robert Francis QC found that “Staff who spoke out felt ignored and there is strong evidence that many were deterred from doing so through fear and bullying.” Systemic issues of poor care and management, large budget cuts and an environment of fear of speaking out about issues led to the serious failings at the hospital. 

Following the Francis Review, various recommendations were made and implemented. One of the most important was the ‘Freedom to Speak Up’ and the requirement for each NHS Trust to have a Whistleblowing ‘Guardian’ to whom concerns could be raised. This initiative was created to develop a more open and supportive culture that encouraged staff to speak up about any issues of patient care, quality or safety. It was intended to enable a cultural change within the NHS with respect to whistleblowing – for this to not only be encouraged but for there to be an active duty on part of medical professionals to raise concerns and for these concerns to be welcomed as part of a healthy discussion over patient care, rather than seen negatively. 

Professor Don Berwick was then asked by the Prime Minister at the time to advise on how to improve the quality and safety of care in the NHS following the outcome of the Francis Review. The review recognised that in some instances clear warning signals were ignored, including the issues at Mid-Staffordshire Hospitals, and that fear of raising concerns and/or the fear of retaliation faced as a result of raising concerns was toxic to both safety and improvement. 

The Report recommended the system must:

  • recognise with clarity and courage the need for wide systemic change
  • abandon blame as a tool and trust the goodwill and good intentions of the staff
  • recognise that transparency is essential and expect and insist on it
  • ensure that responsibility for functions related to safety and improvement are vested clearly and simply
  • make sure pride and joy in work, not fear, infuse the NHS
  • ensure the NHS becomes a learning organisation and that its leaders should create and support the capability for learning, and therefore change, at scale, within the NHS; and
  • ensure supervisory and regulatory systems should be simple and clear. That they should avoid diffusion of responsibility and should be respectful of the goodwill and sound intention of the vast majority of staff, so that all incentives should point in the same direction

So, have these reviews encouraged more staff to blow the whistle and/or improved the experience of whistleblowers within the NHS since? 

Whilst it is unfair to tar all NHS Trusts with the same brush, it is fair to say that whistleblowers often feel they are viewed negatively by management and/or colleagues and are not afforded the protection they should be. This is evidenced most recently by surveys conducted during the Coronavirus pandemic and by the findings of the review into the culture at the University Hospitals Birmingham in 2023.

Whistleblowing and Covid-19

Whistleblowing in the NHS was again in the limelight due to the Covid-19 pandemic. Concerns were raised about the availability and use of personal protective equipment (“PPE”) by front line workers and the release of individuals into care homes, amongst other issues. There have been numerous reports that healthcare workers have been actively discouraged from raising concerns and in some cases subjected to intimidation from senior managers and/or their NHS Trusts. 

In 2020, a survey conducted by the Doctors Association UK of 150 healthcare staff found the following:

  • Just under 50% of those questioned had been told not to raise concerns or speak to the press about access to PPE during the Covid-19 pandemic – by Trust management and senior colleagues;
  • 75% of respondents had concerns about not having access to PPE;
  • A third had reported they had been bullied for raising concerns; and
  • 50% did not feel confident about raising concerns within their Trust for fear of reprisal.

Further, the above statistics are likely to be worse for NHS professionals from ethnic minority backgrounds. 

The British Medical Association (the organisation which represents doctors in the UK) (the “BMA”) has reported that ethnic minority doctors are twice as likely to report that bullying and harassment is a problem within their workplace. Furthermore, the BMA’s surveys during the Covid-19 pandemic show that these individuals were two and a half times more likely not to have spoken out about whistleblowing issues out of fear of reprisals.*

University Hospitals Birmingham (UHB)

A more recent example of the continuing problems with whistleblowing in the NHS is highlighted in the major issues found at UHB. A major review was announced following a BBC Newsnight probe into allegations that there was a climate of fear at UHB which was putting patient safety at risk and that staff were being punished by management for raising patient safety concerns. 

The report also looked into the horrific case of a suicide of a junior doctor, Dr Vaish Kumar, who had left a suicide note blaming the hospital where she worked.

The first phase of the review was published in March 2023. It found that there was a continuing bullying culture affecting morale within UHB and preventing staff from raising concerns. It found the organisation was ‘culturally very reluctant to accept criticism or to acknowledge the adverse views expressed by us.’

Findings into parts 2 and 3 of the review, into governance and culture within the Trust, are expected to be published later this month. 

The review makes for very concerning reading and whilst is not representative of all Trusts, in our clients’ experiences, there is still a pervading culture of blame when raising whistleblowing concerns within the NHS. Our clients often say that wholesale cultural change is required so that raising concerns, and the use of Datix’s and SIRI’s, should be an opportunity for learning and developing, as opposed to apportioning blame. 

Common backlash faced by Whistleblowers

Despite 25 years of legal protection, whistleblowers still find themselves on the receiving end of retaliation. And all too often, the backlash faced by some whistleblowers is astonishing in its form, gravity and long-term consequences. 

In its report, ‘Whistleblowing: The Personal Cost of Doing the Right Thing and the Cost to Society for Ignoring it’, the All-Party Parliamentary Group on Whistleblowing described the ‘Cycle of Abuse’ suffered by whistleblowers. This cycle often includes the following forms of retaliation:

  • isolation of the whistleblower- e.g. by excluding them from the process once a concern is raised and/or by turning other members of staff against them, intimidation and harassment;
  • closer Scrutiny of the whistleblower – e.g. of their performance or conduct, being set up to fail with impossible workloads, demands or deadlines;
  • counter-accusations being raised against the whistleblower – e.g. in respect of their conduct or performance, often the first steps to a ‘character assassination’;
  • disciplinary action;
  • demotion; and
  • dismissal or forced resignation.

A report by the University of Greenwich, commissioned by the All Party Parliamentary Group for Whistleblowing, ‘Making Whistleblowing Work for Society’, examined 600 Employment Tribunal outcomes between 2015-2018. It found that in 2018 nearly 40% of whistleblowers reported going on sick leave. 

Unfortunately, even when whistleblowers do seek a legal remedy and even when they are successful in their claims against their employer, they can still suffer harmful consequences.

We have acted for whistleblowers who have faced years of uncertainty whilst their Tribunal cases are decided, who have developed mental health problems as a result of their treatment and who have ultimately lost or been forced out of their jobs, even where their claims have been successful. Financial compensation is often not enough to compensate them properly for the impact the experience has had on their private and professional life. 

Practical steps for whistleblowers to consider

Clearly the wholesale cultural change towards raising concerns within the NHS envisaged and recommended by both the Francis and Berwick Reviews has, for the main part, not yet happened. It will be interesting to see the findings and recommendations of the latest review into UHB and whether this will provide further impetus for the change needed. 

In the meantime, if you have concerns about practices being adopted by your employer which you reasonably believe might impact the health and safety of patients or other staff members, or is potentially unlawful, then you should consider the following steps:

  1. Take time to understand what amounts to a whistleblowing disclosure before raising concerns – this will better enable you to properly identify whether your concerns are about wrongdoing, malpractice or unlawful conduct in the workplace (known as ‘protected disclosures’) and so fall within whistleblowing protection.
  2. Further to above, understanding the law means you can better formulate your concerns in a manner which is more likely to afford protection under whistleblowing laws. You should seek to relate the activity you are concerned about to one of the examples of malpractice afforded by whistleblowing law. For example, stating factually ‘I am concerned that X practice is occurring which I believe is presenting or may present harm to the health and safety of patients’ would amount to a protected disclosure. Stating ‘X is doing this’ will not. 
  3. Ensure you read your employer’s whistleblowing policy so that you are raising your concerns in the right forum and to the right individuals.
  4. Ensure you behave reasonably and responsibly at all times – employers often try to argue that any detrimental treatment meted out was not on the grounds of what an employee said or did, but the way in which they said or did it. 
  5. Aligned to the above is to ensure you raise concerns factually, without unnecessarily apportioning blame or throwing around accusations. You also do not need to conduct your own investigations in alleged wrongdoing; simply flag the issues factually and leave it to your employer to investigate these concerns further.
  6. In the event your concerns are not investigated, dismissed out of hand or if any findings reached are unfair or unreasonable, then you can escalate the matter if necessary. Just be careful who you escalate to (generally it is better to keep things in-house rather than reporting to external organisations or the press – albeit that can be reasonable in some situations), how you escalate it and how often you escalate it. Otherwise you are in danger of providing your employer with the arguments set out in point 4 above.
  7. Take time to understand the protections afforded by whistleblowing law – this will enable you to better identify when you may have been treated detrimentally on the grounds you raised protected disclosures and/or in cases where your employment is terminated, whether the reason or principle reason for that dismissal was that you made a protected disclosure.
  8. Research the time limits involved in bringing whistleblowing claims. You generally have 3 months less one day from the date your employment terminated to start Acas Early Conciliation (the first mandatory step for initiating Employment Tribunal proceedings). Or, if you remain in employment, within 3 months less one day of the date of the act or omission you are complaining about, or if there have been a series of similar acts or omissions, the last date of them. 
  9. Keep records – it is so important to evidence the protected disclosures made, but also any detrimental treatment you have faced. This can assist your employer to investigate your concerns, any retaliation faced as a result and ultimately if you bring an Employment Tribunal claim to enforce your rights. 
  10. It helps to have expert support in place. You may want to seek advice and support from your trade union, the BMA or the whistleblowing charity Protect who run a free helpline for whistleblowers. In some circumstances, it will make sense to take specialist legal advice.

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Samantha Prosser (SamanthaProsser@bdbf.co.uk) or your usual BDBF contact.

*Source: https://www.bma.org.uk/news-and-opinion/doctors-must-be-free-and-protected-to-raise-concerns-without-fear