In association with our partner company Tiger HR we are happy to bring HR & Employment Law updates to our clients.
The ever-changing nature of this year’s working practice has led to many new claims from disgruntled employees. Among the large array of unfair dismissal claims are claims from whistleblowers. If you raise a concern about a wrongdoing at your work that is in the public interest, this is whistleblowing.
As a result of the coronavirus crisis, many employees have voiced their concerns to their employer surrounding breaches of safety rules or furlough fraud, 20% of said employees have been dismissed as a result. Whistleblowers should never be ignored when they are addressing a real risk being posed by a company’s incompetence, but it is incredibly worrying that they are now lost in an echo chamber given the severity of these concerns in a time as profound as a pandemic. The measures issued by public health authorities have been put in place for good reason and failure to follow could lead to damaging consequences. By the same token, furlough fraud is never acceptable. Companies claiming furlough money and not passing this on to the employees or companies claiming staff are on furlough when they are working is fraudulent, and employees are absolutely within their right to report this. Furlough has become the norm for many where their work has simply been unable to open. Working from home has become the norm for those that are able to. Where it’s not possible for people to work from home due to the nature of their work, workplaces must be a ‘Covid secure’ environment, meaning they should follow all safety guidelines and stick to the rule of keeping a two-metre distance between employees.
All employers should have a protected disclosure procedure. Employees should be able to raise these types of concerns with a nominated person in the workplace and the steps the employer will take to combat these issues in response should be clearly set out. Such disclosures will be protected if there is a belief that the disclosure has been made in the public interest. Protections include the right not to be unfairly dismissed or to suffer a detriment as a result of blowing the whistle. ‘Protect’, a whistleblowing charity, found that 41% of employers ignored these protected disclosures altogether. They analysed 638 cases that were raised between the 23rd March and 30th September and 62% related to furlough fraud, 34% related to a public safety risk – no social distancing and PPE concerns in the workplace, and 4% accounted for other violations. The number of whistleblowing concerns that were ignored by employers increased by 10% during lockdown rising from the 2019 figure of 31% to 41%.
The report from ‘Protect’ is clear evidence that there is not enough being done to protect whistleblowers and that businesses should have arrangements in place to protect the employees and deal with the concerns properly. It would make for an incredibly inclusive and well-rounded establishment to have effective whistleblowing measures in place, as employees will feel as though their concerns are listened to and a difference has been made. The report hopes for the government to create a regulator to implement all this, the Whistleblower Commission. This body would be able to fine businesses who do not follow the right procedure. It also calls for legal aid to be extended to whistleblowers who may need to take their employer to the employment tribunal. Employers found guilty of unfair dismissal with whistle-blowing employees face the prospect of paying out a lot of compensation in damages including a basic award of up to £16,140 alongside this.
The consequences that whistleblowing employees have been facing this year is just not fair. If an employee is dismissed for voicing concerns (disclosure in the public interest), there are protective measures in place. Though, to ensure they are protected, the public disclosure of concern must have qualified as either a criminal offence, a failure to comply with a legal obligation, a miscarriage of justice, a health and safety issue, damage to the environment, or an attempt to cover up one of these. If an employer says the reason for dismissal was because of something else – for example, poor performance – which came shortly after the disclosure, then the tribunal will be suspicious, and the onus is on the employee to ensure there is proof that poor performance has never previously been an issue. If an employer cannot prove that the reason for dismissal is the one that they have given as a pretext, and the employee’s whistleblowing is shown to be the real reason then the dismissal be automatically be deemed as unfair. By way of context, employees have a right not to be unfairly dismissed or suffer a detriment if they raise health and safety concerns. These dismissals will be ‘automatically unfair’ when the employee has raised health and safety concerns through an employer’s health and safety representative, committee or by other reasonable means, where they reasonably believed there were circumstances connected with their work which were harmful or could be potentially harmful to health and safety or where an employee has taken or proposes to take steps to protect themselves and others from dangerous circumstances. This type of claim can be advantageous to employees as it has scope for large amounts in compensation in the employment tribunal. If employees suffer a detriment due to blowing the whistle, then this is also a matter for the employment tribunal. For example, if they suffer a pay reduction or there is no opportunity to progress as a result of whistleblowing. In certain circumstances they can give rise to a claim in the employment tribunal by asserting that their employer breached an implied term in not keeping them safe, and as a result have been subjected to constructive dismissal.
As the number of redundancies is continuing to rise it really is more important than ever for employers to ensure they follow the correct redundancy procedure and get it right. Employers must be able to show that there is definitive rationale behind making an employee redundant. Whistleblowing employees should not be the enemy to a company but rather people who want their workplace to be a competent and safe place to work. Dismissing these employees rather than following a correct disclosure procedure addressing concerns speaks volume of the type of business in operation. In trying times where a lot of employees will be more concerned than ever about their health and the measures in place in their work, it would not be unreasonable for them to draw the parallel between speaking out about their concerns, and their potential dismissal.