KEY WHISTLEBLOWING CASES IN 2021
At Protect, we believe whistleblowing is a good thing – it protects the public interest, helps employers identify and manage risk, and holds organisations to account. We want more people to speak up, to stop harm. This is our round up of significant whistleblowing cases in 2021.
The European Court of Human Rights (ECtHR) found that the Luxembourgish courts did not violate Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR) by convicting a whistleblower for disclosing confidential tax documents to a journalist during the Luxleaks scandal.
Between 2012 and 2014, the Luxleaks scandal erupted when whistleblower Antoine Deltour passed on hundreds of confidential documents highlighting advantageous tax agreements between PricewaterhouseCoopers (PwC) and the Luxembourgish tax authorities to various media outlets. Raphael Halet, another employee of PwC, also passed on several of these confidential tax documents to a journalist.
The disclosures were revealed by in-house investigations led by PwC, and criminal proceedings were issued against both Mr. Deltour and Mr. Halet. While Mr. Deltour was subsequently recognised as a whistleblower and acquitted by the Court of Cessation, Mr. Halet was convicted and sentenced to a criminal fine.
In response, Mr. Halet argued that his conviction amounted to a disproportionate interference with his Article 10 right to freedom of expression, and an application was lodged with the ECtHR. The Court therefore had to assess whether Mr. Halet was a whistleblower for the purposes of the Court’s case law, and applied the principles in Guja v Moldova no. 14227/04 [ECHR 2008], and Heinisch v Germany, no. 28274/08 [ECHR 2011].
In summary, the Guja principles for whistleblowing are: (1) the disclosure is of public interest; (2) the information disclosed is true; (3) informing the public through the media is the only realistic means of alerting them; (4) the applicant acts in good faith; (5) the public interest in receiving the information weighs more heavily than the harm caused to the employer by the disclosure; and (6) any penalty is proportionate.
The main bone of contention was criterion (5), the balancing of the public interest in receiving the information and Mr. Halet’s Article 10 right to freedom of expression, against the harm caused to PwC by the disclosure. Among other reasons, the Court found that the public interest weighed less heavily than the harm suffered by PwC, as there had been “no compelling reason for Mr. Halet to disclose the confidential documents” since they had not provided any “vital, new, and previously unknown” information.
On balance, the Court held that the harm to PwC’s reputation and loss of client confidence outweighed the general interest in Mr. Halet’s disclosure. As such, it found that the Luxembourgish courts had struck a correct balance between the need to protect the rights of PwC, and Mr. Halet’s freedom of expression. The Court also noted Mr. Halet’s “disinterested nature” when disclosing the documents as a mitigating factor when deciding the level of fine to impose.
This case was interesting in relation to the publication of interim relief proceedings brought under PIDA.
Mr Millet was the Head of Acquisitions for his employer. He was dismissed, allegedly for reasons of redundancy, but brought a claim for automatic unfair dismissal under PIDA. Mr Millet claimed to have made several protected disclosures, setting out serious allegations of fraud, homophobia, sexism, and racism within the firm.
Mr Millet applied for interim relief, and his employer sought an order to prevent the publication of any part of the proceedings under Rule 50 of the Employment Tribunal Rules of Procedure 2013, arguing they would suffer serious reputational damage. The Employment Tribunal did not grant the order, and the Employment Appeal Tribunal confirmed the decision. They found that ‘the principle of open justice supported the determination that such hearings should be in public’.
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This is a significant case concerned with the circumstances in which interim relief claims can be brought.
Mrs Steer brought a number of claims against her employer, for automatic unfair dismissal for whistleblowing and for sex discrimination and victimisation. She applied for interim relief for these claims. However, currently there is no right to apply for interim relief for claims which are brought under the Equality Act 2010. The Employment Tribunal only scheduled a hearing for interim relief in relation to her whistleblowing claim.
Mrs Steer appealed the ET’s decision, arguing that, under European law and the European Convention on Human Rights, there should be a right to claim interim relief when bringing a claim under the Equality Act. The Employment Appeal Tribunal found that the unavailability of interim relief in such cases was a breach of Article 14 of the ECHR, which prohibits discrimination. However, the EAT found it was not able to grant interim relief because doing so would amount to ‘quasi-legislation’. Nor did it have the power to make a declaration of incompatibility with the Human Rights Act 1998.
Mrs Steer was granted leave to appeal to the Court of Appeal, which found that the unavailability of interim relief for employment discrimination claims did not breach the ECHR, and suggested that the matter should be decided by Parliament.
For now, the position in the UK remains unchanged. However, in the Republic of Ireland, the incoming Protected Disclosures (Amendment) Bill 2021 will extend interim relief to detriment (‘penalisation’) claims, which could include forms of discrimination.
Public or private concern?
Mr Dobbie was a consultant for a solicitor’s firm, where he raised concerns that a client was being overcharged for legal supervision and working hours. He was subsequently victimised and dismissed. The Employment Tribunal found that he had not made a protected disclosure, as he could not have reasonably believed it was in the public interest – the issues related to the private interests of one client.
However, the Employment Appeal Tribunal held the ET had failed to apply the correct legal tests in making this finding. The EAT stated a disclosure of information relevant to only one person can be a matter of public interest – for example, about a one-off error in the medical treatment of a patient. Mr Dobbie’s disclosures could be considered to advance the general public interest in clients of solicitors’ firms not being overcharged, and in solicitors complying with regulatory requirements. The case was remitted to a fresh tribunal.
Chef Mr Gibson was dismissed by his employer after raising concerns about being called back into work when there were no precautions against Covid in place. Mr Gibson’s father was shielding due to being clinically vulnerable, and Mr Gibson was concerned about catching Covid and passing it on to his father.
The Employment Tribunal found he had been unfairly dismissed under s100(1)(e) ERA 1996, which applies to those take steps to protect themselves or others in circumstances of danger they reasonably believe to be serious and imminent. However, his dismissal claim under PIDA was rejected. Although the ET said the point was ‘arguable’, it was held that his disclosures did not satisfy the public interest requirement under PIDA, on the basis that his concerns were related to the health and safety of his father and not of the broader public.
Establishing reason for dismissal
This case was significant on the issue of separability and causation – where a whistleblower’s behaviour around making a protected disclosure can be separated from the actual making of the disclosure, to the extent that the behaviour itself is the cause of any dismissal or detriment.
Ms Kong was the Head of Financial Audit at her company. She made a number of protected disclosures raising concerns about the legal arrangements for a new investment product, including by sending a draft audit report to the Head of Legal. The report resulted in a confrontation, where the Head of Legal’s legal awareness was questioned. This led to a complaint against Ms Kong, and ultimately her dismissal.
The Employment Tribunal rejected her claim for automatic unfair dismissal, and held that the principal reason for her dismissal was not the fact she had raised concerns, but the way she had raised them, and in particular the breakdown of her relationship with the Head of Legal as a result of this. The Employment Appeal Tribunal upheld this decision. It was found that, although Ms Kong’s behaviour and the relationship breakdown were connected to (and in fact caused by) the protected disclosures, they were separable from the disclosures themselves.
This is another case dealing with separability and causation. Mrs Fitzmaurice raised a number of concerns in relation to health and safety issues and about the way reserve funds were being spent by the charity. In the course of raising these concerns, she made comments to colleagues which were considered threatening and offensive. After being subjected to disciplinary procedures, Mrs Fitzmaurice resigned and brought claims for automatic and ordinary unfair constructive dismissal.
The Employment Tribunal rejected her claims, finding that, although she had made some protected disclosures, these were not the reason for disciplinary proceedings being brought against her. The ET found that her employer was ‘much more concerned about the way in which that concern was raised rather than the fact of the claimant raising it’. As a result, there had been no fundamental breach of contract by her employer and no constructive dismissal.
However, the Employment Appeal Tribunal held that the ET had not properly applied the law in this judgment. It was found that the test of causation had not been properly applied: the ET had found the protected disclosures had not been the cause of disciplinary proceedings against Mrs Fitzmaurice, but hadn’t considered whether they had had a material influence.
The ET also hadn’t directed itself to the relevant law on separability. The EAT helpfully summarised that distinctions could be made between treatment resulting from the making of a protected disclosure itself, and that resulting from:
- The manner in which the protected disclosure was made
- Things that were done at the same time as the disclosure
- The consequences of the disclosure
The EAT also stressed that ‘the analysis must be carried out with considerable care because of the possible in-roads into the protection offered to whistleblowers by severing protected disclosures from ancillary matters’. The EAT said there was a ‘need to consider with great care whether surrounding circumstances could be properly treated as separable from the making of a protected disclosure’. The case was remitted to a fresh hearing.
Mr Watson discovered financial irregularities in the records of the solicitor’s firm he worked for. After raising these concerns, Mr Watson resigned and was initially put on gardening leave for the duration of his notice. However, the firm then informed him he was required to return to work. He was subsequently dismissed for gross misconduct, relating to his behaviour in resigning immediately after the disclosures.
The Employment Appeal Tribunal upheld the Employment Tribunal’s finding that the dismissal was not automatically unfair, on the basis that the employer’s decision to dismiss the worker was not as a result of making the protected disclosures. Instead, the ET was entitled to find that the reason for dismissal was Mr Watson’s decision to resign instead of helping to resolve the financial irregularities. It was held that Mr Watson’s conduct before and after the disclosures was separable from the protected disclosures, which would have to be the principal reason for dismissal for the automatic unfair dismissal claim to succeed.
Mr Mott was made redundant from his work as logistic manager for a company providing transportation services to NHS Trusts for patients with mental health problems. Prior to being selected for redundancy, Mr Mott has raised concerns with his employer about understaffing, highlighting the impact on staff and patients and alleging the company was in breach of its legal obligations.
The Employment Tribunal found that Mr Mott had made some protected disclosures, and that he had been unfairly dismissed because of this. However, the Employment Appeal Tribunal held that the ET judge had applied the wrong test of causation in making this finding. Rather than considering whether protected disclosures were the ‘sole or principal reason’ for the dismissal, the ET had looked at whether the disclosures had ‘materially influenced’ the dismissal – the test for a whistleblowing detriment claim.
Mr Mott had also raised a number of matters with his employer which weren’t qualifying disclosures under PIDA. The EAT found that the ET had failed to consider the extent to which his protected disclosures specifically had impacted on his dismissal, and had instead considered the impact of all the concerns Mr Mott had raised.
The case was remitted to the ET for a fresh hearing.
Dr Heslop raised concerns while working as Director of Custom Programmes at the Oxford Said Business School. She was worried that the company was in breach of contract with one of its major clients, and about other instances where the company might not be complying with relevant legislation. Dr Heslop alleged she then suffered negative treatment as a result: complaints against her were not investigated using fair processes, no information was given about the allegations made against her, and she was told to stay away from work. Dr Heslop subsequently resigned and brought claims for detriment and automatic unfair constructive dismissal.
Her claim for detriment succeeded, as the Employment Tribunal found the negative treatment she experienced had been materially influenced by her protected disclosures. However, her dismissal was not automatically unfair, as it was not held that principal reason for the dismissal was the disclosures. The Employment Appeal Tribunal upheld this decision – it found that there was no tension between these two findings, as the ET had correctly followed the different tests of causation.
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