KEY WHISTLEBLOWING CASES IN 2022
Ms Kong, who was Head of Internal Audit, blew the whistle on the illegality of a new investment product that her employer Gulf International Bank was offering to investors. In doing so, she questioned the legal awareness of the Bank’s Head of Legal. This criticism led to a complaint, and ultimately her dismissal. Both the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) agreed that she had been unfairly dismissed but found that the principal reason for the Ms Kong’s dismissal was not the fact that she blew the whistle, rather her behaviour and the consequent breakdown of the relationship between her and the Head of Legal was the main reason.
The Court ruled that a whistleblower raising concerns about serious wrongdoing in a reasonable way can still be dismissed if the employer subjectively finds her behaviour objectionable and therefore separate from the protected disclosure. An employer may be able to dismiss a whistleblower for the behaviour and breakdown in relationship that follows whistleblowing, rather than the whistleblowing itself.
The Court said there are likely to be few cases where employers will be able to rely on upset or inherent criticism caused by whistleblowing as a separate and distinct reason.
Protect intervened as a third party because this is a case of importance to public policy. Our intervention sought clarity on whether you can separate out the whistleblowing from the behaviour of the whistleblower and the consequences. It is unlawful to dismiss a whistleblower if making a “protected disclosure” is the principal reason for their dismissal. However, employers can succeed if they can successfully argue there was another main reason why they dismissed the whistleblower.
Ms Kong’s behaviour was noted to have been very reasonable: The judge at the ET found that her disclosure was “conciliatory in tone and careful in the way [it was raised,] so as to avoid causing [those responsible] any embarrassment”. Despite this, the tribunal found that it wasn’t contrary to whistleblowing legislation to dismiss her for the manner in which she’d raised concerns.
The Court of Appeal said ‘Some things are necessarily inherent in the making of a protected disclosure and are unlikely to be properly viewed as distinct from it. The upset that a protected disclosure causes is one example because for all practical purposes it is a necessary part of blowing the whistle; inherent criticism is another … There are likely to be few cases where employers will be able to rely on [these sorts of distinctions]’.
Ms Kong is seeking permission to appeal to the Supreme Court.
This is a worrying decision by the courts that means an employer can dismiss a whistleblower for the manner in which they raised concerns, rather than the whistleblowing, even if those concerns were raised in a reasonable way.
But Protect’s view is that this judgment will create uncertainty for whistleblowers, and make it easier to victimise and dismiss whistleblowers. The law needs to change to strengthen whistleblower protection.
Lord Borrie, supporting the passing of the Public Interest Disclosure Act , explained that “the law will stand by [whistleblowers] provided they raise the matter in a responsible and reasonable way”; this judgment means that this is not the case.
Dr S Kumar v The Care Quality Commission: 2410174/2019
Dr Kumar brought claims of having been subjected to a detriment on the grounds of having made a protected disclosure or a series of protected disclosures. This related to concerns that he had reported regarding inadequate hospital inspections, staff bullying and serious patient harm.
Dr Kumar was involved in an inspection for the CQC in 2015. Since having raised his concerns about that doctor, he has been subjected to intimidation, and that some friends of the doctor have been trying to turn the matter into a BME/SAS doctor issue.
Applying the legal test as laid down in Warburton v Chief Constable of Northamptonshire Police (2022) EAT 42, this tribunal accepts that placing a person on hold in circumstances whereby disengagement was inevitable and where its practical impact is to preclude that individual from being involved in inspections, as it did to the claimant, is a detriment.
The tribunal made the point that there is “a world of difference” between leaving on one’s own terms and being subject to a disengagement or suspension. This case illustrates that being suspended for making protected disclosures can be a detriment and employers should be careful before employing such a tactic.
Frewer v Google UK Ltd  EAT 34
A reminder that quality of disclosures, not quantity, should be uppermost in pleadings
Mr Frewer brought a claim in the Employment Tribunal for, amongst other things, detriment and automatic unfair dismissal for having made protected disclosures that the employer was engaged in anti-competitive behaviour by favouring two major clients in the travel industry. The employer argued that Mr Frewer had been dismissed because of his conduct at a dinner when he allegedly sexually harassed two female colleagues by making inappropriate sexual comments and suggestions.
This was not a final hearing of the matter, but the case was interesting as the Tribunal reminded the parties of their obligation to assist the tribunal by limiting the areas of dispute as far as possible. The Judge stated that those drafting whistleblowing complaints often feel that the greater the number of disclosures and detriments that are asserted, the greater the prospects of success, when the opposite is often the case. The focus should be on quality, rather than quantity. In this instance, Mr Frewer had pleaded close to 100 alleged protected disclosures, but he needed to identify and focus on the alleged disclosures which he said resulted in the decision to dismiss him and the rejection of his appeal.
Mr A Babb v Orange Twist Ltd: 3205901/2021
Complaint that a small group of staff were denied breaks can constitute protected disclosure
Mr Babb was engaged by the employer as a waiter before being dismissed. His employer claimed that he was being dismissed due to a lack of shifts and reduction in the workforce. After dealing with issues concerning Mr Babb’s employment status, the Tribunal found that he had been automatically unfairly dismissed solely because he had complained about staff getting no breaks and breaks being cut short.
The Tribunal found that these complaints were qualifying disclosures as in complaining about staff getting no breaks and breaks being cut short, the disclosure tended to show a breach of a legal obligation (to provide breaks under the Working Time Regulations 1998 (WTR)). In complaining about understaffing, Mr Babb had made a disclosure that tended to show health and safety was likely to be endangered by tiredness and risk of accident.
The Judge acknowledged that the disclosures were not mere allegation, they included information: for example the lack of breaks, breaks cut short and the understaffing. He also acknowledged that he was not required to judge whether there were actual breaches of the WTR or Health and Safety legislation but whether what Mr Babb wrote tended to show such breaches, and that is sufficient to establish a qualifying disclosure.
Regarding the requirement for the disclosure to be in the public interest, Mr Babb had acknowledged in his email that the complaints were made for himself and the group of staff in the pub. The Judge asserted that, although this group was relatively small, it was large enough to amount to a section of the public (his co-workers) as this was beyond merely his own private interest. It didn’t matter that he only later thought about the impact on customers.
Dismissal not necessarily unfair when there are other causes in addition to whistleblowing
The claimant was a security guard at Selfridges London. The claimant submitted a grievance against his manager, which he alleged contained a whistleblowing allegation that his manager had been using drugs outside of work.
The respondent subsequently dismissed the claimant, asserting that it was due to the outcome of an investigation. The investigation was initiated within three weeks of the respondent submitting his grievance. The respondent said that the Security Control Room had seen the claimant with his hands in his pocket and away from his designated position, both in violation of directions given to the claimant.
The Claimant argued that the principal reason for his dismissal was the fact that he made a protected disclosure, and therefore his dismissal was an unfair dismissal and in violation of s103A ERA 1996.
The Tribunal found that the allegation that the claimant “failed to follow instructions from Control” was initiated by the security control office independently of the Claimant’s whistleblowing and grievance submission. While the Tribunal acknowledged that the warnings to the claimant, including a final warning and dismissal only weeks after he submitted a complaint which included whistleblowing, may appear to be more than a coincidence, however eventually concluded it was merely a coincidence. The Tribunal accepted that had the Claimant not submitted his grievance, he would still have had issues spotted by the control room and been subsequently disciplined.
EJ Emery decided that as there were repeated acts of misconduct by the claimant the respondents acted within the range of reasonable responses of a similarly sized and resourced employer and concluded that the claimant’s dismissal was fair.
Kam Jhuti originally raised concerns about a colleague at the Royal Mail. She alleged that the colleague had been breaching Ofcom guidance as well as the Royal Mail’s bonus policy. She was then dismissed and brought a claim for an unfair dismissal. In 2015 the Employment Tribunal ruled that she was unfairly dismissed.
In addition, the employment tribunal confirmed that Jhuti had been bullied, harassed and intimidated by the individual to whom she reported the concerns, which the tribunal described as having “destroyed the claimant’s life”. The tribunal also noted that “all of the medical professionals are clear that the resolution of these employment tribunal proceedings is necessary as a prerequisite to the claimant beginning to make any sort of recovery.” This treatment unfortunately left Juhti with long term health problems such as depression and post-traumatic stress disorder.
The tribunal has now recommended that Royal Mail pay Jhuti £109,065 in compensation in addition to £12,500 in aggravated damages. Although this is only a recommendation and the parties are to agree to the exact figures, the tribunal stated that in light of the aforementioned medical issues facing the claimant that the respondent should do this is a quickly as possible, and that if they have “any shred of decency it will ensure the process is swiftly completed.”
NHS nurse awarded pay-out for raising patient safety concerns
Linda Fairhall, a nurse, originally brought an employment tribunal claim in relation to being dismissed which was heard in April 2018. She was sacked after making 13 complaints to her employer, North Tees and Hartlepool NHS Foundation Trust, about a new policy which meant that the nurses she managed would be responsible for an additional 1,000 patient visits each month. She was concerned that this would leave the nurses dangerously stretched and overworked.
The tribunal found that “incidents of [nurse] absences due to stress and anxiety began to increase.”
In October 2016, ten months after she first raised her concerns to the trust, she informed her superiors that was going to begin the formal whistleblowing process after a patient death which she considered preventable.
She was subsequently suspended and dismissed on 16 April 2018 with the trust alleging that she was sacked for “gross misconduct”. The tribunal subsequently came to the conclusions that these allegations against Fairhall were too vague with no specific evidence or examples provided. Fairhall succeeded in her claims of automatic unfair dismissal for raising protected disclosures, ordinary unfair dismissal, detriment for making protected disclosures as well as breach of contract for failure to pay notice pay.
The trust’s appeal was dismissed. In a remedy hearing, Fairhall was awarded £462,000 in damages.
Veterinarian settles for largest sum for a whistle-blower ever in Northern Ireland
Dr Tamara Bronckaers was worked as a veterinarian for the Veterinary Service Animal Health Group, part of the Department of Agriculture, Environment & Rural Affairs (DAERA) in Northern Ireland. In her role she inspected livestock across the country. Her job included monitoring for animal borne diseases and bio security.
Whilst doing so, it became apparent that some animals were not being treated and handled in accordance with applicable animal welfare and health and safety regulations. This resulted in serious animal welfare concerns and food safety.
When Dr Bronckaers raised these concerns with DAERA she was treated in such a way where she felt “excluded, ignored and undermined.”
In her tribunal hearing, it was found it was reasonable for Dr Bronckaers to feel that the organisation’s chief vet’s treatment of her to be “intimidation, patronising, belittling, and dismissive of her as a professional”.
The tribunal ruled that Dr Bronckaers had indeed been subject to a constructive dismissal. Although DAERA originally appealed the ruling, they subsequently dropped their appeal and settled for £1.25 million, the largest ever whist blower settlement in Northern Irish history.