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Key whistleblowing cases over 2021

KEY WHISTLEBLOWING CASES IN 2020-2021

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 the whistleblowing cases in 2020-2021 which clarified or developed the law.

Halet v Luxembourg no. 21884/18 [ECHR 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.

Protect says:

In the UK, the requirements for qualifying disclosures to the media to receive protection under whistleblowing legislation are as follows: (1) reasonable belief that the information disclosed is substantially true; (2) the disclosure is not made for personal gain; (3) there must be a reason for making a wider disclosure to the media (e.g. internal disclosures have failed); and (4) it must be reasonable to make the disclosure in all the circumstances.

One noticeable difference with the ECtHR’s test, is the lack of the Guja criterion (5) balancing act, and the subrequirement for information disclosed by whistleblowers to be “vital, new, and previously unknown”. In Protect’s opinion, a balancing act is excessive in the context of whistleblowing. Indeed, it requires would-be whistleblowers to independently evaluate the contribution of their disclosures to the public debate – a near impossible task. The information disclosed by Mr. Halet was of the same nature as that disclosed by Mr. Deltour. Therefore, Mr. Halet should equally be recognised as a whistleblower. There should be no first-come-first-served whistleblowing protection under the law.

Granted, the confidential tax documents disclosed by Mr. Halet did not reveal anything that had not already been brought to light by Mr. Deltour, but they were nonetheless relevant as they evidenced further wrongdoing by PwC and the Luxembourg tax authorities. When Mr. Halet made his disclosure, the Luxleaks scandal was still ongoing, and there is no such thing as too much evidence in the middle of a scandal.

Key whistleblowing cases in 2020

See below for our overview of the key positive outcome whistleblowing cases in 2020

Simpson v Cantor Fitzgerald Europe [2020] EWCA Civ 1601

This case highlights how detailed a whistleblowing disclosure must be, to be considered a protected disclosure. Mr Simpson, who worked in a UK-based investment bank as Managing Director, claimed he had made several disclosures (the Employment Tribunal counted 37).

The Court of Appeal states:
(i) there is no hard boundary between disclosing information and making allegations

(ii) a disclosure on its own does not necessarily need to be detailed as long as it discloses sufficient information when combined with others.

But the Court went on to say in order to be grouped together, disclosures must have some sort of link between them. In this case, there did not seem to be any.

Mr Simpson had failed to explain what disclosures needed to be taken together, why and what  the information was resulting from this combination. Taken separately or grouped together, none of Mr Simpson’s alleged disclosures could amount to a protected disclosure. The Court of Appeal found the reason why Mr Simpson was dismissed was not because of these disclosures.  Mr Simpson was dismissed because it had become “utterly impossible” for his colleagues on his team to work with him; the lack of trust between them was “corrosive” and “ultimately insuperable” and he had a poor attendance record.

Protect says:

This case helps to further clarify the law on what is a “disclosure of information”. It is also a clear reminder that workers cannot count individual grievances as whistleblowing issues. For more advice on whether to raise a concern as whistleblowing or as a grievance, see our helpful pros and cons analysis.

Do you need advice?

You can contact the Protect Advice Line for advice on whistleblowing.

Mr Jesudason, a paediatric surgeon, blew the whistle about medical practices in the hospital Trust he worked at from 2006 to 2012.

This case concerns letters the Trust sent to various third parties in response to Mr Jesudason’s claims in the press – responses in which they inferred Mr Jesudason was not trustworthy.

The Trust argued their response was not a detriment, as it was not caused by Mr Jesudason’s whistleblowing but by their wish to protect their reputation. The Court of Appeal clarified that the frame of mind of the (ex) employer does not matter when deciding whether or not something is a detriment. What matters is the effect of the treatment. If the treatment is seen as damaging by the Claimant (and is reasonably so), then it is a detriment. But this does not mean that the employer’s reason for the treatment is irrelevant. It very much comes into play at the ‘causation stage’. i.e. when the judge looks at whether or not the detriment was caused by the whistleblowing disclosure.  The judge said:

If the employer can show that the reason he took the action which caused the detriment had nothing to do with the making of the protected disclosure, or that this was only a trivial factor in his reasoning, he will not be liable”.

Here the judges considered that the reason for the treatment was indeed not the disclosure, but the need for the Trust to protect its reputation.

Protect says:

This case shows how complicated whistleblowing law is to navigate, with legal tests that are far from obvious for claimants and respondents alike. Whistleblowers can be disadvantaged by their ex-employers actions even after leaving employment, and may be able to bring detriment claims, but demonstrating causation is difficult. Protect is campaigning for a new Whistleblowing Bill clarifying the law and improving access to justice. Legal advice for whistleblower litigants in person is especially necessary.

Our impact in 2020

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.

Ikejiaku v British Institute of Technology Ltd UKEAT/0243/19

This case is interesting firstly on time limits. In whistleblowing cases, the claim has to be brought within three months of detriment the worker wants to complain about, unless this detriment is continuing over a period of time. But is the detriment a one-off act with continuing consequences, or a continuing act?

Mr Ikejiaku was a lecturer who blew the whistle twice and suffered a detriment each time. The first detriment was in 2016 when a new contract was imposed on him. A year later, he raised a concern that the Dean had told him to give a pass mark to students who had been found cheating. He was dismissed the next day without any formal process, the employer claiming they suddenly had a reduced need for lecturers. Mr Ikejiaku lodged a claim for whistleblowing automatic unfair dismissal and wanted to include the 2016 detriment.  The Employment Appeal Tribunal (EAT) decided that, while the imposition of a new contract has continuing consequences, it is not a continuing act in the same way as for instance a long campaign of abuse over a period of time. This was a one-off act which was out of time.

The case is also interesting on compensation. Mr Ikejiaku argued his employer dismissed him without any due process, and crucially without applying the ACAS Code of Practice on Disciplinary and Grievance Procedures. This is financially significant: not following the ACAS Code when the employer should do so means the compensation that the Tribunal can be uplifted by up to 25%. The Employment Appeal Tribunal judged that even if the ACAS Code does not apply to the dismissal procedure (as in this case) it applies in relation to the grievance process. In particular, the judge found that Mr Ikejiaku’s disclosure constituted a grievance within the definition of the ACAS Code (“concerns, problems or complaints that employees raise with their employers”), that the employer should have followed the ACAS Code and the uplift should be considered.

Protect says:

This case highlights why we need a statutory code of practice in relation to whistleblowing matters – just as we have one for disciplinary and grievance issues. It is time the law clarifies the issue identified by the Employment Appeal Tribunal on what processes employer should follow in whistleblowing cases. Protect is running a campaign calling for a Whistleblowing Code which would develop good practice and set up clear official standards and procedures for employers to follow.

Rihan v Ernst and Young Global Ltd [2020] EWHC 901 (QB)

Auditor Mr Rihan was awarded USD10.8 million in damages after being forced out of his job when he blew the whistle on an unprofessional and unethical audit of a Dubai gold refiner.

But this is also a key legal development: the High Court created a new duty expanding whistleblowers’ protection. Mr Rihan claimed he was compelled to flee Dubai where he worked because voicing his concerns had placed him at risk from the Dubai authorities, who were anxious to preserve Dubai’s reputation as an international gold trading hub and had – along with Ernst and Young (E&Y) – intervened in the audit to cover up the findings. E&Y did not offer him an alternative role and requested that he returned to work in Dubai. Mr Rihan resigned, published his findings in the press and brought claims against three entities in the E&Y network. The High Court judged that Mr Rihan had a valid tortious negligence claim – which was that E&Y had breached a duty to take reasonable steps to prevent him from suffering financial loss by failing to perform an audit ethically and without professional misconduct.

This case expanded the ‘duty of care’ – which traditionally means providing a physically safe environment- to include a duty to provide an

“ethically safe work environment, free from professional misconduct (or indeed criminal conduct though that is not this case) in a professional setting”.

The judge took pain to highlight that in ‘normal’ cases, whistleblowing claims will be brought in the Employment Tribunal under the Employment Rights Act 1996. Mr Rihan could not do for jurisdictional reasons (he did not normally work in Britain) and because none of the Respondents (to whom he blew the whistle) had been his employer. This new duty may assist whistleblowers whose career and future earnings are damaged by the actions of their employer (or by other parties) but who cannot use PIDA as a protection, although the facts of the case are unusual.

Protect says:

This important judgment sends a clear message to employers that failing to protect workers who blow the whistle on unscrupulous and unethical practices can cost them dearly.  A healthy speak up culture and appropriate processes to deal with whistleblowers are vital, not just as ‘early warning’ risk management and governance tools crucial to employees’ engagement, productivity, innovation and well-being but also because without it, things can become extremely expensive.

Casamitjana Costa v League Against Cruel Sports ET/3331129/18

Mr Casamitjana is a vegan activist who was dismissed by the League Against Cruel Sports after having disclosed to colleagues that its pension funds were being ‘unethically’ invested in companies which were said to harm animals.

He brought claims for discrimination and whistleblowing.

A preliminary hearing had to determine whether ethical veganism could amount to a philosophical belief, capable of protection under the Equality Act. In this particular case, the judge decided that it did so.

The League paid Mr Casamitjana a substantial sum to settle the case and a League’s spokesperson said:

Having revisited the issue we now accept that Mr Casamitjana did nothing wrong with such communications, which were motivated by his belief in ethical veganism. We are grateful to Mr Casamitjana for having raised the issue of pensions to us, which allowed us to change our default pension fund to an ethical one closer to our values.”

Protect says:

A happy ending story! The judgment is not binding and is, of course, fact specific. But this is still an important case for whistleblowers as it clearly sets out that ethical concerns on the way companies are run or invest their money can in some circumstances be protected by discrimination law.  In the last month, 25% of the whistleblowing cases that Protect legal advice line advised on were about ethical concerns – there is growing need for the law to reflect the issues raised whistleblowers. Protect is running a campaign for a new Whistleblowing Bill clarifying that this kind of concerns is also more clearly included in the list of concerns protected by PIDA.

Ms C Griffiths v The Institution of Mechanical Engineers: 2200023/2020

Mrs Griffiths was a trustee and President of the Institution of Mechanical Engineers, a membership body. She raised whistleblowing concerns about various governance and compliance issues and claims she was victimised because of them.

The first question the Employment Tribunal had to decide was whether she could have whistleblowing protection under the Public Interest Disclosure Act 1998 (PIDA) as she was not an employee. The judge then looked at the case of Gilham and noted that this was a difficult area of law. The judge suggested that not all office holders could, like Judge Gilham, claim whistleblowing protection. The key question in this case was whether Mrs Griffiths’ situation was comparable to that of a worker. The judge decided it was not because a trustee role is an honorary volunteer role which a person does for interest and prestige, but no remuneration is involved. A trustee also has limited obligations. This meant Mrs Griffiths could not benefit from PIDA’s protection with the Judge saying:

The Employment Rights Act is concerned with workers; and in my view trustees are not analogous to those in the workplace; but volunteers who give their time freely for interest, prestige, and/or the desire to give back.”

Protect says:

We understand that Mrs Griffiths is now appealing. For a real speak up culture of transparency and collaboration to thrive in workplaces, it is crucial that trustees and other volunteers get the protection that PIDA gives to workers and that the Supreme Court extended last year to judicial office holders. The statute law needs reform to reflect the Supreme Court’s ruling and provide much needed clarity about who is protected. Protect is running a campaign for a new Whistleblowing Bill which would clearly include them, as is the already the case in the new EU whistleblowing directive.

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