Tribunal victory for care worker is a reminder not to discriminate against whistleblowers
Monday 7th February 2011Following the recent successful claim by a care worker in Torquay, who was dismissed after making allegations about the quality of care at a nursing home, employers should be checking their whistleblowing policies.
Whistleblowing occurs when 'workers' make a disclosure to the right person about any of the following:
- A criminal offence;
- A breach of any legal obligation - contractual or statutory;
- A miscarriage of justice;
- Danger to the health and safety of any individual;
- Damage to the environment; or
- The deliberate concealment of any of the above.
A 'detriment' could be disciplinary action, dismissal, loss of pay, damage to career prospects or even a refusal to provide a reference once employment has terminated. Recent case law suggests that the whistleblowing only has to be partial reason for the detriment for a claim to be successful.
Normally, for the employee to be protected, a disclosure should be made to the employer, but there are circumstances in which it would be justified to tell other individuals or bodies, such as a regulator, a legal adviser or another person prescribed by the Secretary of State. If the disclosure relates to a failure that is deemed to be 'exceptionally serious', there is more discretion as to whom the disclosure is made, as long as the whistleblower acts reasonably.
Unlike most other forms of unfair dismissal, where the reason for dismissal is whistleblowing, there is no qualifying period of employment to make a claim. and no cap on the amount of compensation that can be awarded.
Crucially, as illustrated by this recent case, it does not matter whether a whistleblower can fully substantiate their allegations, or whether ultimately they turn out to be false. The law protects disclosures made in good faith and according to a 'reasonable belief'.
Any claim brought by a worker who has suffered a detriment because of his or her whistleblowing could damage both the employer's reputation and staff morale. Employers should therefore take the following practical steps:
- Implement a whistleblowing policy, make sure that it is publicised internally and provide training about the policy;
- Promptly investigate disclosures and keep the whistleblower informed of the progress; and
- Remember that confidentiality clauses are unenforceable if the disclosure is protected. This means that, if an employer takes action against a Worker for breach of confidence, that may amount to a "detriment".
STOP PRESS
If further reminder were needed for employers, it was reported by the Western Morning News on 21 February 2011 that the Royal Cornwall Hospital Trust could be liable to pay £263 a day just in interest, after deciding to appeal a £1.2 million 'whistleblowing' award to a former chief executive - thus potentially adding at least £48,000 to the final bill. This is in addition to undisclosed legal fees.
In May 2010, an Employment Tribunal ruled that John Watkinson was dismissed because he was about to blow the whistle on legal advice suggesting that it was unlawful to press ahead with moving controversial cancer services out of Cornwall.
If you would like more detailed advice on whistleblowing, or would like Ashfords to review your whistleblowing policies, please contact Charles Pallot.
Ashfords LLP is regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice or as an alternative to taking professional advice relating to specific circumstances.
