Whistleblowing claims and interim relief – a cautionary note for employers

The pandemic and lockdown have provided fertile ground for whistleblowing claims. Many workers have been raising concerns about working safely, and how the employer is managing the risk of COVID-19.   

We have seen a surge in employers asking for advice on how to manage these issues and in some cases dealing with employment tribunal claims that result.  We have recently dealt with an application for interim relief. This is a specific application which a worker can make in some situations on the back of their whistleblowing claim. Claims for interim relief are very high stakes since if successful the employer will be ordered to reinstate the worker or pay their salary until the hearing date. These claims are becoming more common and represent a real risk for employers, requiring quick and decisive action.

What are whistleblowing claims?

Whistleblowing claims arise when a worker claims they have suffered a detriment or been dismissed as a result of making what is called a protected disclosure.  A protected disclosure is made where the worker discloses information which they reasonably believe shows a certain type of wrongdoing, for example a breach of a legal obligation, that health and safety has been endangered, or that there has been a deliberate concealment of any of those things.   The law seeks to encourage whistleblowers to speak up and so aims to protect them. Workers have the right not to be dismissed or suffer a detriment because of their actions in making a protected disclosure. If the employment tribunal finds that the reason for dismissal was the fact that a protected disclosure had been made then the dismissal will be held to be unfair. The usual period of two years continuous employment does not apply and claims can be brought at any stage of employment.

Few employers would actually seek to put genuine whistleblowers at a detriment or dismiss them.  Claims often arise in situations where the employer does not believe that the whistleblowing is genuine, or believes that the disclosure has been made maliciously or for an improper motive.  In some cases the worker may believe that their disclosures have not been looked into thoroughly or have not been treated seriously.

The current climate provides many opportunities for would-be whistleblowers. For example, concerns related to furlough fraud, allegations that their employer isn’t following government guidance or even disputes about who can be required to return to the office or workplace. There must also be a reasonable belief that the disclosure is in the public interest.  However, the case law shows that the public interest threshold is quite low, for example a concern raised about a worker’s own bonus calculation, said to have been manipulated by the employer, was held to qualify, on the basis that the alleged manipulation would have affected a number of other employees. Where the disclosure is about a health and safety issue, or alleged fraud, the public interest test will often be obvious.

What should an employer do?

Ensure that any concerns raised by workers are looked into and appropriate action is taken. Not all concerns will amount to protected disclosures but actively consider, when the concern is raised, whether the concern could amount to a protected disclosure and whether the employee who has raised the concern might be entitled to the protection from any detriment or dismissal.

Investigate any concerns that are raised and keep the employee informed about the situation. Not all concerns will be upheld or found to merit any action. 

Ensure that you have a written whistleblowing policy to encourage people who genuinely suspect wrongdoing to speak up.  Make it clear how such concerns should be raised – often through a dedicated email address.

Tell staff that whistleblowing is taken seriously. Appoint someone in the organisation to be responsible for encouraging staff to speak up in genuine cases.

Train managers to understand when and how to investigate concerns that are raised and what support is available within the organisation, for example from HR.

Know when to treat a concern as a whistleblowing complaint and when not to.  Concerns that are not whistleblowing concerns can often be dealt with in some other way, for example under the grievance procedure.

What about interim relief?

Although the law offers protection to whistleblowers, this protection has its limits.  For example, if a worker is dismissed after making a protected disclosure, even if they make a claim, they are likely to face many months before they get to a hearing of the case. In whistleblowing claims, the employment tribunal is faced with making a decision about what was the real reason for termination of employment.  Was it the fact that the worker had made a protected disclosure (as the worker will assert) or was it for some other reason?   For this reason, the claims are complex and often involve a detailed analysis of witness evidence. Many cases take over a year to get to a final hearing.  Claimants are therefore likely to face many months of delay and also lost wages, pending their cases being heard.  For this reason, an application for interim relief can be made in whistleblowing cases involving a dismissal.

Interim relief is a hearing which takes place soon after the claim has been issued by the employment tribunal and sent to the employer.  At the hearing, if the judge decides that it is likely that the worker will be to be able to show at a final hearing that the reason for the dismissal was the protected disclosure then the worker has the right to either be reinstated into the old job, or if this is not practicable then the judge will order the employer to continue to pay the worker’s salary until the final hearing date.  The result of an interim relief hearing can therefore be very expensive for the employer. 

What happens at an interim relief hearing?

The purpose of the hearing is for the judge to take a view on whether the claimant is likely ultimately to be successful.  However, it is not a full trial and it is rare for the judge to listen to any oral evidence from witnesses.  Instead the judge decides based on the contents of the Claim document, the Response document and any documents the parties put forward, together with their arguments or submissions on the day of the hearing.  The key question is “why did the employer dismiss”.   Therefore, the employer’s case should focus on exactly that.

Do you have any tips on how to conduct a successful interim relief hearing?

We were fortunate enough to successfully defend a recent interim relief application on behalf of our client.  We would offer the following tips:

Treat the application very seriously – if you lose the financial penalties are severe.

Ensure you have enough time to prepare. By the time our client had received the employment tribunal papers there was less than a week to prepare for the hearing so we applied successfully for a postponement and a relisting giving us a vital further week to prepare (which was needed!)

Focus really clearly on the reason for dismissal – starting with the dismissal letter but explaining very carefully how the circumstances arose that led to dismissal.  The case for dismissal needs to look credible and natural.

What will the claimant’s arguments be and how will you respond to them? The claimant’s case will be that the reason put forward by the employer was not the real reason and that one or more protected disclosures was the real reason. How are they going to be able to show this?

Take immediate and effective legal advice from a specialist employment lawyer as soon as you are aware of the claim and that an application has been made.

Do you need support in dealing with whistleblowing allegations or defending employment tribunal claims?  Talk to your usual Brabners employment law contact or Lee Jefcott.