Member Article

This is the first in a mini-series of articles setting out how whistleblowing claims can be (and are being) pursued in the Employment Tribunal during the pandemic. This first article discusses the concept of a 'protected disclosure'.

Whistleblowing is not always as dramatic or headline-grabbing as this, and disclosure can often be made on a more day-to-day level. Employers therefore should always be aware of the possibility that their workers could bring whistleblowing claims before an Employment Tribunal.

The amount of potential compensation available for successful claims for whistleblowing under the Public Interest Disclosure Act 1998 is not limited, and some of the costliest Tribunal judgments have involved a whistleblowing element.

What is a qualifying disclosure?

The fundamental feature of a whistleblowing claim is that the individual must have made a ‘qualifying disclosure’, which is a disclosure of information in relation to;

• A criminal offence
• A breach of a legal obligation
• A miscarriage of justice
• Danger to the health and safety of an individual
• Damage to the environment
• The deliberate concealing of information in relation to any of the above
  
  

The six subject areas listed above are rather wide, and in practice a qualifying disclosure can take many forms. For example, disclosures could be;

• A banker disclosing that the workforce is being forced to work hours that are in excess of legal limits
• A retail assistant alleging that their manager is using a company credit card to buy personal items
• A nurse alleging that there is widespread medical malpractice at their hospital
  
  

Whistleblowing can also form part of other claims – for example an individual could assert that they were dismissed as a result of submitting a complaint about offensive comments related to a disability. The individual could bring a victimisation claim under the Equality Act 2010 but could also assert that their complaint was a disclosure about a breach of a legal obligation, and bring a whistleblowing claim as well.

It is important to always consider whether something is capable of being a qualifying disclosure to ensure that workers who have made these disclosures are not treated unfairly. Unlike a claim for ‘ordinary’ unfair dismissal, it is not necessary for an employee to have 2 years’ continuous service in order to bring a whistleblowing claim.

Who does the disclosure need to be made to?

In order to become ‘protected’, a qualifying disclosure needs to be made to a certain person – the most common situation in the legislation is where the disclosure has been made to ‘the employer’.

In practice, if the person to whom the disclosure is made is more senior than the whistleblower (such as their line manager) this will be sufficient to provide the protection. If a disclosure is made to HR it will also be very likely to have become a protected disclosure, even if the HR member the disclosure is made to is junior and the complaint is about a very senior-level subject. Employers should ensure that anyone who might be deemed as a person that a disclosure can be made to is able to identify a qualifying disclosure and, if necessary, direct it to the appropriate person.

One of the key features of a good whistleblowing policy (which a later article will cover in more detail) is that it specifies who individuals should go to if they wish to make a protected disclosure.

The individual can also, in certain circumstances, make disclosures to a ‘responsible person’ (such as a client or customer, if the matter relates to them) or a ‘prescribed person’. The latter of these tends to be public bodies, such as HMRC or the Financial Conduct Authority.

It is also possible for disclosures to be made more widely, for example to the media. However, a Tribunal would apply a number of tests in this case to decide whether the disclosure was protected. This would include the motivation behind the disclosure and the overall reasonableness of the person’s actions in taking it to the media rather than to the employer or prescribed person.

COVID-19 related disclosures

To add to the difficulties in identifying a protected disclosure in ‘normal times’, the pandemic has only served to expand the possible protected disclosures that an individual could make.

Clearly, it is not difficult to imagine protected disclosures in relation to the virus itself, particularly for those who are unable to work at home. There have been numerous legislative changes which set out the new rules in relation to the ways of combatting COVID (e.g. wearing face masks, social distancing and the limiting of numbers in groups). The key pieces of legislation have been the Coronavirus Act 2020 and the Public Health (Control of Disease) Act 1984.

As well as being a legal obligation in and of themselves, some of these changes also involve criminal sanctions, for example for not self-isolating after receiving a positive test. As such, an employee or worker bringing any allegations forward in relation to a failure to comply with the COVID rules fully brings it into the territory of a potential protected disclosure. If a supermarket worker made a complaint that a colleague had received a positive test and was not sent home despite management being aware of this, this would be very likely to be a protected disclosure.

Similarly, there are potential disclosures derived from government’s response to the effects of the virus on the economy and the wider world, most notably the Coronavirus Job Retention Scheme (CJRS). Although the CJRS has morphed numerous times since its inception, it has always been a fundamental requirement that an employee must do no work for the employer in order for the employer to be eligible for the receipt of funds.

Almost immediately there were anecdotal stories of unscrupulous employers claiming for furlough funds and still requiring its employees to work, and in doing so dishonestly making a profit from the CJRS. It is not difficult to imagine a situation in which an employee complains that they are being made to work while furloughed, and although this may well be borne out of personal resentment, this could well be a protected disclosure, particularly if the practice was being done on a wider scale.

As lockdowns have eased and more people have returned to their workplaces, it is clear that COVID-related protections such as capacity limits, mask-wearing and hand sanitising will be around for at least a while longer.

As well as being a legal obligation, a failure to provide these and similar measures could, potentially, be a danger to an individual’s health and safety. This is particularly so if the workplace is also open to the public and could lead to the health and safety of customers/clients/other parties being prejudiced. It does not have to just be the health and safety of the company’s staff that is affected for a disclosure to be protected.

Conclusion

COVID-19 has not given rise to entirely new standalone employment law claims, but it has opened up new avenues to existing claims. Whistleblowing is one area where it is arguably easier for an individual to bring a claim now than it was before the pandemic.

The health and safety aspect is possibly the area to be most cautious about – as well as there being an obvious moral duty to protect individuals there is the legal duty to ensure a safe workplace for those who work there. If anyone makes an allegation or complaint about a failure to comply with that duty, it is also a legal requirement to ensure that they are not treated unfavourably or dismissed as a result of them making that complaint, whether that is COVID-related or otherwise.

The next article in our mini-series is the extent to which a private grievance can really be ‘in the public interest’, which is another requirement for a successful whistleblowing claim.