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Things to consider when the best person for the job is a Whistleblower

17th September 2019

All workers are protected from dismissal or suffering a detriment as a reaction to them acting as a whistle blower (known as making a “protected disclosure”). This protection arises under section 47B of the Employment Rights Act 1996.

Three points to remember:

1.  This protection applies to “Workers”. This is a much wider definition than “Employees”, as it can include temporary workers, zero hour contract workers, and even agency workers.

2.  The act of whistleblowing is where a person discloses information which they believe to show one or more of the following-

  • That a criminal offence has been committed; is being committed or is likely to be committed.
  • That a person has failed, is failing or is likely to fail to comply with any legal obligation he has.
  • That the health or safety of any person has been, is being or is likely to be endangered.
  • That the environment has been, is being or is likely to be damaged.
  • That any of the above matters are being or are likely to be deliberately concealed.

3.  The whistle-blower making the protected disclosure only has to have a reasonable belief that those circumstances exist, they do not have to know the matter to be true, or prove it to be so.

Much has been written about those that suffer detriment within their existing employment. Therefore, in this article we consider whether the whistle-blower is still protected after they have left, for whatever reason.

Action Against Former Employer

Potential action may be taken against the Former employer. It is an established principle from Woodward v Abbey National Plc that this can be taken in respect of incidents happening after the end of the relationship between the parties. It makes sense that such an action is available and the simple parting of ways should not remove any liability and thereafter allow the employer to act in an unreasonable manner.

This is potentially likely to arise if an employer provides a bad reference for the whistle-blower. The fact that the person is no longer employed or engaged by that organisation is immaterial, and the provision of such a reference is likely to amount to a detriment, and for which the whistle-blower may bring a claim before the Employment Tribunal. It is likely that the losses in such circumstances may be significant as it may well have cost the whistleblowing employee their new job.

In these circumstances, it is advisable that employers do not provide adverse references in reaction to a protected disclosure having been made, and any action should be considered very carefully.

Action Against Potential New Employer

An important question is whether the same whistle-blower has protection against a new employer (or potential employer) who decides not to employ them when they discover that they blew the whistle on their previous employer, perhaps because they are viewed as a “trouble-maker”.

Caution should be taken, as whistle-blowers also have protection against their new employers. The relevant legislation is given a wide interpretation so that whistle-blowers cannot suffer a detriment because of their former actions, irrespective of it being during a former employment or engagement. Whilst there is very limited case law in this area, this position is helpfully confirmed in BP plc v Elstone and another.

It follows then that decisions about refusing to offer an individual a role, and certainly any withdrawal of any offer or otherwise terminating an employment, must be treated very carefully. Further steps must be taken to ensure that the individual is not being treated detrimentally because of their past actions, and it is be best practice to maintain confidentiality around such issues as far as possible.

In short, there certainly can be implications for former, current and future employers when employees have “blown the whistle” and made Protected Disclosures, and so caution must be used when such issues arise.

If you find yourself in a situation involving a protected disclosure or whistleblowing situation (whether as an employer or employee), we have an experienced team ready to provide practical advice and guidance, so please contact Jason Alcock, an Associate Director in our Employment and Dispute Resolution team. Email him at jalcock@ansonssolicitors.com or call him direct on 01543 267 196.