Whistleblowing Update Andrew Blake
Protected Disclosures - Groundhog Day? 11kbw.com 2
Worker Status for Protected Disclosure Claims Section 43K - Extended Definition of Worker: “ an individual who is not a worker as defined by section 230(3) of the ERA… ”. Compare: – Day v Lewisham and Greenwich NHS Trust and Health Education England (CA overruled EAT – handed down 5 May 2017) – McTigue v University Hospital Bristol NHS Foundation Trust (and Tascor) 11kbw.com 3
Worker Status (II) Specific cases where no contract: • Sharpe v The Bishop of Worcester, Church of England Rector • Gilham v Ministry of Justice , District Judge 11kbw.com 4
Qualifying Disclosure: Section 43B (1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following — (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed . 11kbw.com 5
Qualifying Disclosure I: Information or Allegation Cavendish Munro Professional Risk Management v Geduld: “Communicating “information” would be: “The wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around.” Contrasted with that would be a statement that: “You are not complying with health and safety requirements.” In our view this would be an allegation not information.” Kilraine v London Borough of Wandsworth : “I would caution some care in the application of the principle arising out of Geduld v Cavendish Munro .” 11kbw.com 6
Qualifying Disclosure II: Reasonable Belief Eiger Securities LLP v Korshunova – What must the claimant prove in relation to her belief that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject? – What scope is there for a claimant to have a reasonable yet mistaken belief? 11kbw.com 7
Qualifying Disclosure III: Public Interest Made in the Public Interest – Chesterton Global Ltd v Nurmohamed and Morgan v Royal Mencap Society – Reasonable belief, even if mistaken – The public interest is broad: health and safety ( Morgan ); accounting principles, group impact and the identity of the respondent ( Chesterton Global) . 11kbw.com 8
Reason for Dismissal: Knowledge Royal Mail Group Ltd v Jhuti “…where a manager makes a decision to dismiss in ignorance of the true facts, the decision having been manipulated by someone else who is in a managerial position responsible for the employee and who was in possession of the true facts, there was no reason why the reason held by the manipulator could not be attributed to the employer…” 11kbw.com 9
Reason for Dismissal: Belief of the Employer Beatt v Croydon Health Services NHS Trust “… where it is found that the reason (or principal reason) for a dismissal is that the employee has made a disclosure, the question whether that disclosure was protected falls to be determined objectively by the tribunal.” Accordingly, the employer’s belief as to whether a disclosure is protected is irrelevant. 11kbw.com 10
Remedies for Detriment Roberts v Wilsons Solicitors LLP “…compensation should be…just and equitable in all the circumstances. But, in exercising that discretion, there are two mandatory considerations: first, the Tribunal must have regard to the infringement itself, in other words the nature and gravity of that infringement; and, secondly, they must have regard to the loss attributable to the act or failure to act which infringed the individual's rights.” 11kbw.com 11
Keep an eye out for… Court of Appeal decisions in: – Day v Lewisham and Greenwich NHS Trust (5 May 2017) – Chesterton Global Ltd v Nurmohamed – Royal Mail Group Ltd v Jhuti – Gilham v Ministry of Justice 11kbw.com 12
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