Employee voice
Learn about employee voice, its purposes and use, and the benefits it can bring to an organisation and its workforce. We also look at whistleblowing and creating a speak-up culture
Selected cases on reported whistleblowing
Here we list a selection of key cases, reported since 2011, on whistleblowing, providing a summary of the decision and implications for employers.
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Lough v Taaks of Scotland Ltd and Singh |ET| September 2021
4107899/2020
Issue: whistleblowing on non-compliance with COVID-19 rules
An employee was furloughed, and her pay reduced to 80%, without her agreement. She was a disabled person within the meaning of the Equality Act 2010 as she was having treatment for cancer.
The employee and other staff complained to the CEO of the company about:
The employee was then dismissed and claimed unlawful deductions from wages, breach of contract, failure to pay notice pay and accrued holiday pay, and not being provided with a statement of terms and conditions of employment. She also claimed she’d received detrimental treatment for making protected disclosures (whistleblowing) for health and safety reasons, and dismissal for raising health and safety concerns with her employer and/or for making a protected disclosure. Neither the employer company or the CEO submitted a defence or attended the hearing.
The Employment Tribunal found that there had been unlawful deductions from wages and ordered payment of £1,327.34. Employers who paid 80% of the employee’s normal wages while furloughed without obtaining employees’ agreement to the reduction will be liable to deductions claims. Compensation was also due for lack of notice pay, accrued holiday pay, and failure to supply a written statement of particulars.
In addition, the detriment claim succeeded, so the employee was also due compensation for dismissal on the grounds of making a protected disclosure (blowing the whistle) of just over £18,000 (including injury to feelings and interest) plus compensation for ongoing financial loss for 52 weeks. The employee had obtained alternative employment but at a lower salary and benefits, with additional travel costs.
The claimant’s health increased her compensation, as her employer should have known that failing to address COVID-19 health and safety concerns (she was required to work without any protective measures in place) put her in a potentially life endangering situation. The impact on the claimant was exacerbated by having to find alternative employment during a pandemic.
[2017] EWCA Civ 1632
Issue: Whistleblowing – knowledge of dismissing manager
An employee sent emails to her manager complaining that her colleagues had breached customer discount rules. The manager pressurised her to retract the allegations, which she did, as she was anxious about losing her job. After this, her manager criticised her performance and set inappropriate targets for improvement. She complained to HR about this treatment, went on sick leave and raised a grievance.
Another manager was appointed to review matters, but was not shown the initial emails and did not meet with the employee, who was by then off sick. However, she did receive a lengthy series of emails referring to the previous allegations. Jhuti’s manager said the employee withdrew her original allegations of improper conduct. The reviewing manager dismissed the employee for unsatisfactory performance which, after Jhuti made an unsuccessful appeal against the dismissal, led to an automatically unfair dismissal claim for making protected disclosures (whistleblowing).
A key issue was deciding what impact the dismissing manager’s failure to see the protected disclosures had on the decision to dismiss Jhuti. She could not have been motivated to dismiss Jhuti by those disclosures as she had been manipulated by the other manager. Does the question of what an employer reasonably believes during a dismissal procedure have to be based on the knowledge of the person who actually made the decision to dismiss?
The Supreme Court confirmed that the dismissal was automatically unfair. The real reason for the dismissal was the employee blowing the whistle about breaches of Royal Mail’s rules. The dismissing manager had genuinely believed there was a problem with the employee’s performance, but she had been manipulated by the other manager who wanted to bring about the employee’s dismissal.
It is not always necessary for a dismissing manager to know about the employee’s whistleblowing disclosures in order for the dismissal to be automatically unfair.
Employees who make a protected disclosure (blow the whistle) have special protection from being dismissed or treated badly by their employer.
It is automatically unfair for an employer to dismiss an employee because they have made a protected disclosure. It is not necessary for the manager who actually makes the decision to dismiss to know about the protected disclosure.
Two main types of whistleblowing claim are automatically unfair dismissal against the employer and detrimental treatment against both the individual manager and the employer:
This decision has implications for the liability of HR managers. A detriment claim includes compensation for injury to feelings, and importantly can be brought against individual managers as well as the employer.
In this case, the employee did not try to bring a detriment claim about the dismissal against either of the managers directly. Employees may do so in future, especially as there can be extra damages for injury to feelings in whistleblowing claims. The dismissing manager cannot be liable for unfair dismissal, but could potentially be named in a whistleblowing detriment claim. A manager who genuinely knew nothing about the whistleblowing may have a defence if they were misled by the employee’s line manager, but may be liable if they have not investigated thoroughly.
Decision-makers should simply not accept information from other managers in its entirety. It is quite possible that another manager may try and engineer a dismissal to cover up evidence of their own misconduct. Whilst managers do not often fake an employee’s inadequate performance, this decision acts as a warning:
To avoid similar situations, employers must conduct a thorough investigation into underperformance or misconduct before making their final decision. The decision-maker should meet with the employee (which did not happen in this case) and pay careful attention to all evidence from employees which refer to protected disclosures.
[2018] EWCA Civ 1436
Issue: Protected disclosures - Whistleblowing
An Education Achievement Project Manager was dismissed by her local authority employer allegedly by reason of redundancy. She then brought a whistleblowing claim, arguing that her dismissal was because she made protected disclosures.
She had previously made allegations about colleagues concerning discrimination, health and safety, bullying and safeguarding. Following these concerns she had been suspended pending a disciplinary investigation in about unfounded allegations against her colleagues. She had remained suspended until the redundancy dismissal.
The key issue was if the Claimant’s disclosures amounted to a protected disclosure for the purposes of whistleblowing.
The Court of Appeal confirmed the EAT’s view that none of the Claimant’s disclosures amounted to a protected disclosure. So, there could not be a whistleblowing claim. To amount to Whistleblowing there must be a relevant disclosure of information. Here the employees allegations failed to convey specific information which showed a breach of a legal obligation.
This case is important for employers as it helps explain how each allegation must have sufficient and specific information disclosed to show information which would qualify as a protected disclosure:
If the employee provides vague information lacking relevant detail, employers can say there has not been a relevant disclosure of information.
Employees and workers claiming protection under whistleblowing legislation must show breach of an actual legal obligation, rather than just a belief that actions were undesirable.
It is no longer necessary to determine if a statement is an ‘allegation’ or a disclosure of information. Employers can simply focus on whether there are specific facts which are relevant failures for whistleblowing purposes.
(unreported, UKEAT/0163/15 27 August 2015, EAT)
Issue: Whistleblowing - public interest
An HGV driver and three colleagues complained about the safety and road-worthiness of their lorries and after doing so alleged they were then granted less overtime and paid less. After raising this complaint, the driver was dismissed.
He claimed automatically unfair dismissal and detriment as a result of the protected disclosure he had made. The issue was whether a contractual dispute between employees and their employer was a matter of public interest and if the claim had no reasonable prospect of success.
The Employment Appeal Tribunal held that an employee may rely on the whistleblowing legislation in relation to a complaint about the application of terms in their own contract of employment where there is a public interest dimension to the complaint. Because the complaint related to concerns about vehicle safety and road-worthiness, it could be considered a matter of public interest.
The claim would therefore proceed to another hearing to determine whether the driver was dismissed because he had made a protected disclosure.
[2016] Appeal No. UKEAT/0149/16/DM
Issue: Protected disclosures - Whistleblowing
A sales executive for a broking business was dismissed for gross misconduct. She and her colleagues frequently used a tool called Bloomberg Chat to communicate with clients. The Managing Director used the employee’s login details to chat with her clients on her computer, without explaining to clients that it was him.
The employee said it was wrong for him to effectively pretend to be her. However the MD still got IT to unlock the her computer on a number of occasions. He said that changing her login details without telling him would be gross misconduct. Later three of the executive's clients were reallocated to other brokers and she was suspended due to two trading errors. She switched off her computer before leaving work and did not attend the disciplinary hearing. She was dismissed for the trading errors and for gross misconduct for insubordination because of switching off her computer without notifying her boss.
She claimed automatically unfair dismissal and whistleblowing related detriment.
The EAT held that the employer had not breached a legal obligation for the purposes of the whistle blowing legislation.
The EAT found that the employee had made a disclosure of information, but that it was not established that she reasonably believed all employees were bound by a particular, legal obligation that had been breached. As this could not be proved, the employee could not rely on having made a protected disclosure.
The EAT overturned the finding that the disclosures had led to the alleged detriment. The alleged detrimental treatment was due to the Claimant's conduct, which amounted to insubordination.
Employers must not subject workers or employees to detriment as a result of them making a protected disclosure. In order to be protected a disclosure must (among other things) convey facts or information; and show that the employer has committed certain types of wrongdoing.
If the employee cannot show which legal obligation is allegedly breached, the employer may have a defence:
When sued by an ex-employee especially those who are representing themselves employers should consider if a legal obligation has been identified when drafting their defence.
(unreported, UKEAT/0335/14 8 April 2015, EAT)
Issue: Whistleblowing - public interest test
A senior manager at an estate agent blew the whistle on three occasions. He was concerned about his employer’s commission structure and alleged that the company’s accounts had been manipulated to the detriment of around 100 senior managers who were all paid on a commission basis. The senior manager was eventually dismissed and claimed automatically unfair dismissal for whistleblowing i.e. for making the three protected disclosures.
The Employment Appeal Tribunal held that the disclosures potentially affected the bonuses of the 100 managers and that was a sufficient section of the public to satisfy the public interest test.
(unreported, EAT/0464/13 14 September 2014, EAT)
Jurisdiction (legal test for whether foreign nationals can bring unfair dismissal and whistleblowing claims)
The claimant was a US employee of a US company who was paid in US Dollars. He worked about half his time in the UK (managing the UK and Abu Dhabi businesses) and the rest in the US. He got a daily allowance for each day spent in the UK. Employment contracts should always expressly state which country's legal system applies to the relationship, but this one did not. There was a clause in the contract saying that all disputes would be dealt with under the rules of the American Arbitration Association. The claimant was on numerous US boards and committees of the employer company. When in London he lived in rented accommodation paid for by the employer. He had furniture and home effects in Texas where he and his partner lived.
The employer introduced a permanent local Chief Executive Officer to head the UK business. While he was in the US the claimant's UK secondment was ended, followed by a redundancy dismissal. He claimed unfair dismissal and whistle blowing and sexual orientation discrimination under the Equality Act 2010. The issue was did the UK employment tribunal have jurisdiction to consider his claims or was it a matter for the relevant state in the US?
The Employment Appeal Tribunal (EAT) decided the strongest connection of the employment contract was to the US. The EAT held that neither UK or EU law was engaged and the employment relationship was an American relationship.
(unreported, UKEAT/0449/12 27 March 2014, EAT)
Issue: Whistleblowing - victimisation guidance by EAT
A chain of pharmacies employed a pharmacist who was required to ensure compliance with all relevant statutory and regulatory requirements. During her first week of employment she identified 17 health and safety concerns which she set out in an email. Shortly afterwards she was dismissed which she claimed was for whistleblowing for making protected disclosures. She claimed automatically unfair dismissal and unlawful detriment based on her having made the protected disclosures.
The Employment Appeal Tribunal (EAT) held that the employment tribunal had failed to identify properly, with reasons, which of the various concerns raised by the claimant amounted to protected or qualifying disclosures. However it upheld the tribunal’s decision that the claimant was unfairly dismissed and set out some useful guidance as to how tribunals should analyse employees' claims for victimisation for having made protected disclosures:
(unreported, [2012] EWCA Civ 1207 26 September 2012, CA)
Issue: Whistleblowing and sex discrimination
A solicitor and equity partner with a City law firm was seconded to a Tanzanian law firm in 2010. A few months later she discovered that the Managing Director of the Tanzanian law firm had paid bribes to get work and a favourable outcome to a case. She blew the whistle, but the allegations were denied by the City law firm and she was subsequently dismissed. She had also recently informed the firm that she was pregnant. She brought claims in the UK employment tribunal alleging that she had been subjected to a detriment for making a protected disclosure (whistleblowing) and that she had been unlawfully discriminated against because of her sex and/or pregnancy. The City law firm contended that the tribunal did not have jurisdiction to hear the claims and maintained that she was not a worker in respect of the whistleblowing claim.
The Court of Appeal, disagreeing with the Employment Appeal Tribunal, held that where someone is a partner of a traditional partnership, or member of a limited liability partnership ( LLP), they cannot be a worker. Her sex discrimination claim could proceed as this was specifically allowed under the Equality Act 2010, but the whistleblowing claim could not.
(unreported, [2011] EWCA Civ 1190 25 October 2011, CA)
Issue: Whistleblowing - detriment
Three registered nurses were employed in a walk-in health centre. The nurses had made genuine protected disclosures about another employee who had been exaggerating his qualifications. This employee eventually apologised about exaggerating his qualifications and it was decided that no further action would be taken against him. The nurses were then subjected to the actions of other members of staff at the centre who were supportive of the employee. Ultimately one nurse was removed from her managerial responsibilities and she and another were redeployed away from the walk-in centre. The third nurse, who was a bank nurse, was not given further work. All three brought employment tribunal proceedings, alleging that they had been subject to a detriment as a result of their protected disclosure, contrary to the protection for whistleblowers in Section 47B of the Employment Rights Act 1996.
The Court of Appeal disagreed with the Employment Appeal Tribunal and found that the employer was not liable for the actions of the other members of staff towards the three nurses or the subsequent treatment. An employer can only be vicariously liable where the employees have committed a legal wrong. Under the discrimination legislation, individuals may be personally liable for their acts of victimisation taken against those who pursue discrimination claims. However by contrast, there is no provision which says it is unlawful for workers to victimise whistleblowers as such. There is no claim of whistle blowing victimisation and so the claims could not succeed. The employer could only be liable if the whistle blowing had materially influenced the employer’s treatment of the employees.
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice
Learn about employee voice, its purposes and use, and the benefits it can bring to an organisation and its workforce. We also look at whistleblowing and creating a speak-up culture
Answers to commonly asked questions on the legal issues relating to whistleblowing in the workplace