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Spotlight on whistleblowing

The recent Co-op case makes the stakes in whistleblowing cases clear. So what is best practice here?

Whistleblowing is once again in the spotlight with the news that the former Co-operative Group procurement director, Kath Harmeston is pursuing a whistleblowing claim against the business, following her dismissal after just five months in the job. She is claiming £5 million in damages, one of the largest ever claims of its type.

Harmeston was suspended following an anonymous whistleblowing report against her. She contends the report contained a number of false statements, and that her dismissal in fact came about after she alleged corporate malpractices as an attempt to “utterly destroy” her reputation and career.

What is whistleblowing?

Put simply, workers are protected from dismissal, detriment, harassment and bullying if they make a ‘protected disclosure’; that is the disclosure of information to their employer (or in certain circumstances to a regulatory body) indicating that wrongdoing has occurred in the workplace, such as a criminal offence or a breach of a legal obligation. From 2013 a worker also needs to reasonably believe the disclosure is made in the public interest. Therefore complaints regarding an employee’s own personal circumstances (such as a breach of their contract) should be dealt with as a grievance rather than under the whistleblowing procedures.

Key factors to bear in mind are that protection under the whistleblowing legislation is a ‘day one’ right (there is no minimum length of service needed as with ordinary unfair dismissal), it applies to workers (not just employees) and the amount of compensation that can be awarded is uncapped.

The benefits of a whistleblowing policy

Undoubtedly the best step an employer can take to protect itself is to implement a comprehensive whistleblowing policy that sets out the process for raising and dealing with disclosures. The policy should be publicised and followed consistently, with the visible support of management.

Whistleblowers should be supported throughout the process (the policy should highlight this), with confidentiality respected. For obvious reasons whistleblowers can be unpopular and suffer retaliation. If they do the organisation risks a tribunal claim. HR should therefore brief those involved in the process of the procedure and their obligations to protect the whistleblower.

Workers raising their concerns within the scope of the policy are normally protected. However, if they ignore the procedures and instead, for example, head straight to the press, they may not be afforded that protection. A whistleblowing policy can therefore ensure potentially reputation-harming allegations are contained internally.

Fight or settle?

A frustrating situation is where an employee facing the prospect of dismissal raises whistleblowing concerns to protect themselves, especially if they do not have the two years’ service needed to bring an ordinary unfair dismissal claim. Employers still need to take the allegations seriously and follow the usual processes. As long as the dismissal is not caused by the whistleblowing it will be fair. However, determining whether or not this is the case is never straightforward and following the correct procedure will help an employer in this regard.

The decision whether or not to defend a whistleblowing claim can be tricky given the tribunal is a public forum and the allegations raised by the employee(s) will be aired and potentially attract adverse publicity. In addition, a successful claim can result in a significant (and publicised) compensation award. Furthermore workers often fear the prospect of becoming ‘unemployable’ as a result of bringing a claim. The stakes are high for both parties, and few whistleblowing claims make it to a final hearing for these reasons. In circumstances where an employer believes it has behaved properly and fairly the principle of defending the claim can outweigh the commercial benefits of settlement.

Keely Rushmore is an employment law associate at law firm SA Law