Yesterday’s case of the traffic warden sacked for exposing illegal parking ticket quotas demonstrates both the value and the cost of whistleblowing in the workplace. Whistleblowing is, of course, of immense social value – the exposure of immoral, unlawful, possibly criminal, activity in the workplace is undeniably a “good thing”. However, whistleblowers often suffer personally when they expose the activities of companies – Mr Berkani, for instance, lost his job and has found it hard to regain employment again. Whistleblowers therefore are subject to special protection under the Employment Rights Act 1996 in two manners:
- They gain unfair dismissal rights should they be dismissed as a result of their whistleblowing (their “protected disclosure”) (unfair dismissal applies to employees only, though)
- Workers (a wider category than employee) can’t be subjected to a detriment if they make a protected disclosure
This post will examine the two types of protection that potential whistleblowers may have.
Employees are entitled not to be unfairly dismissed under the Employment Rights Act 1996. This right extends to the right not to be dismissed for the reason or the principal reason of their making a protected disclosure. Unlike “normal” unfair dismissal cases employees don’t have to have continuous employment of one year (two years now if their employment commenced on or after 1 April 2012) before they qualify for their unfair dismissal rights. This is because the dismissal of whistleblowers is what is termed an “automatic unfair dismissal” case. There is also no cap on damages (in unfair dismissal cases the cap is normally approximately £72,000. If a whistleblower is dismissed from their employment then they can claim unfair dismissal under the Employments Right Act 1996 if, as above, the reason or the principal reason for their dismissal is the protected disclosure. This highlights two issues. Firstly, what happens if an intervening event occurs (such as misconduct by the whistleblower) which may warrant dismissal? Secondly, what is a protected disclosure?
If the whistleblowing employee engages in misconduct after he has exposed illegal activity then the Respondent may (if the misconduct is sufficient reason and the procedure is correct) dismiss the whistleblower without incurring liability for automatic unfair dismissal. However, the Respondent would have to demonstrate that the principal reason for the dismissal was the misconduct rather than punishment for the whistleblowing.
A protected disclosure is composed of two elements – the “Qualifying Disclosure” and the “Protected Disclosure”. A Qualifying Disclosure is the disclosure of information which (in the reasonable belief of the worker) shows that any one of the following has occurred, is occurring, or is likely to occur:
- A criminal offence
- Failure to comply with a legal obligation
- Miscarriage of justice
- Breach of health and safety
- Damage to the environment
- Information relating to one of the above has been concealed
A Qualifying Disclosure becomes a Protected Disclosure if the information is disclosed to one of the following (among others, although these are the “normal” means):
- The employer (“internal disclosure”)
- A lawyer, a Minister of the Crown etc. (“external disclosure”)
The Qualifying Disclosure must be made in good faith and with reasonable belief that the information is substantially true.