Greater protection for whistleblowers?
A recent Court of Appeal case has extended the potential ambit of those who might be protected by the whistleblowing regime.
It is expensive for organisations to defend against whistleblowing claims, and can have significant reputational repercussions even if successfully defended. It should not be forgotten that if a whistleblowing claim is successful, an Employment Tribunal has the power to award unlimited compensation.
A whistleblowing claim is therefore something HR managers, business owners and regulators are always on the look-out for. Responsible employers, business owners and regulators will all want to know if staff have concerns that may impact the workplace, particularly if it has the potential to impact health and safety.
What was the case about?
An important case was heard recently by the Court of Appeal, which had to determine whether a doctor who had a training contract was protected after he raised concerns about patient safety.
The doctor, Dr Chris Day, was placed with the London Deanery (which later became part of Health Education England, or HEE). HEE placed the doctor in a variety of NHS trusts as part of his training. He would then have a contract of employment with the relevant trust where he was carrying out his training.
The training included working at Lewisham and Greenwich Hospital. Dr Day was concerned about serious understaffing in the hospital and he complained to his employer, the hospital, and to HEE which met with him to review his training progress. He claimed that after raising his concerns, he suffered a detriment as a result.
A technical legal issue arose as to whether Dr Day could properly bring an allegation of whistleblowing as he did not meet the definition of a worker as set out in the relevant whistleblowing legislation.
HEE took the position that Dr Day was not protected by the whistleblowing protection as he did not fit the definition of a worker.
The Court of Appeal
Ultimately, Dr Day’s case failed and he took his case, supported by a crowd-funding appeal which raised over £140,000, all the way to the Court of Appeal.
The Court of Appeal determined that the matter should be properly reconsidered as a preliminary point at the Employment Tribunal. Ultimately there were two possibilities that gave Dr Day the protection that he believed he was entitled to. The matter has now been remitted to the Employment Tribunal to determine whether HEE could potentially be considered his employer as well.
The case is important to all organisations since it shows that the courts interpret whistleblowing legislation in a way to protect those who raise issues of importance. Courts will not shy away where there is a potential gap in protection to ensure that individuals are adequately protected. Given scandals over more recent years this is perhaps not surprising.
The key point is that whistleblowing continues to remain an issue that is of grave importance for everyone, and in particular those in the health and care sectors as well as those in industries such as construction, transport, environment, financial services and others.
Where once employers may have thought that individuals were not protected because they were not directly employed by them, the message coming through is that courts are prepared to extend protection to non-employees to ensure whistleblowers are given the protection they require.
With the rise of the ‘gig economy’ and the different ways individuals now work for organisations, this is an issue that will continue to evolve.
For a whistleblowing claim to be successful, the complainant has to show that they have suffered a detriment, which can be anything from being denied training, overtime or being removed from a contract (as well as lots of other examples). To help minimise whistleblowing claims, employers should:
- Implement a whistleblowing policy, train staff on it, and keep it under review
- Ensure managers know how to spot potential whistleblowing allegations (the complainant does not have to label it whistleblowing, so they can be missed)
- Ensure staff are aware that whistleblowers can include a wide type of personnel who work for your organisation (including trainees, contractors, agency workers and the self-employed)
- Keep written evidence to justify staffing decisions (to avoid allegations that decisions were taken for unlawful reasons but were business justified)
- Take specialist legal advice early on
Organisations can do much to help encourage the correct raising of issues in the workplace and ensuring that those who do raise concerns are able to do so with fear of repercussions. A culture where concerns are correctly addressed will ensure a safe and successful workplace and that can only be good news for organisations, shareholders and those that work there.
We have significant experience in advising on this complex area and would be delighted to talk to organisations about their existing whistleblowing regime and how we can help with training and policies.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.