KEY WHISTLEBLOWING CASES IN 2023
This page serves as a comprehensive exploration of key whistleblowing cases that have occurred throughout the year, unraveling stories that have captured public attention and ignited debates on a range of issues. Both successes and disappointments serve as a strong reminder that our work is not only needed, but also making imperative changes to individual lives and wider society.
On February 14, 2023, the Grand Chamber of the European Court of Human Rights delivered a significant ruling in the case of Raphaël Halet, one of the LuxLeaks whistleblowers. Mr Halet is a former PWC employee who was prosecuted on several charges after he revealed documents to the press showing a major global network of tax avoidance schemes based out of Luxembourg. The Court found that Halet’s criminal conviction violated the European Convention of Human Rights, specifically Article 10, which protects the freedom of expression.
This decision marked an important affirmation by the Court that whistleblowing is an exercise of free expression and is thus protected under the Convention. The Court rejected the notion that only the initial disclosure should be protected and disagreed with Luxembourg courts’ assessment that the information disclosed was not “essential or fundamentally new information”. Instead, the Court recognized that the information provided by Halet was “alarming or scandalous” and had “provided fresh insight.” Moreover, it noted that the disclosures had contributed to ongoing public discussions about tax avoidance and had led to investigations, changes in EU law, and other consequences.
The judgment is important for its emphasis on the concept of the public interest, which extends not only to illegal acts but also to conduct that is ‘reprehensible or controversial’. Though Mr Halet’s disclosures had caused harms to the employer, these were outweighed in the circumstances by the overall public benefit in terms of promoting transparency and public debate on international taxation.
Protect’s Comment: The European Court of Human Rights’ ruling in the Halet case is a significant step in recognising the importance of whistleblowing as an exercise of free expression and public interest. It sets a precedent for broader protections for whistleblowers and underscores the role of whistleblowers in bringing about positive change in society by addressing issues of public concern.
This case from 2022 represented a major blow to the legal protections available to whistleblowers. Ms Kong was dismissed after raising whistleblowing concerns, and the Tribunal held that she was unfairly dismissed, awarding her £87,693.83 (the maximum she could be awarded), including a 25% uplift for the employer’s failure to follow the ACAS Code of Practice. However, her claim for automatic unfair dismissal due to whistleblowing was defeated. The employment tribunal found she was (unfairly) dismissed not for raising whistleblowing disclosures, but for her (separable) conduct in doing so. Subsequent appeals to the Employment Appeals Tribunal and Court of Appeal were both unsuccessful.
In January of this year, the Supreme Court denied Ms. Kong permission to appeal , on the grounds that the application does not raise an arguable point of law.
Protect Comment: As Protect commented at the time, this judgment undermines protections for whistleblowers. Allowing an employer to dismiss a whistleblower for the manner in which they were (wrongly) perceived to have raised concerns, even if those concerns were raised in a reasonable way, creates uncertainty for those who speak up in the public interest. The law needs to strengthen whistleblower protections, not make it easier to victimise and dismiss them.
A senior official at the Foreign, Commonwealth and Development Office (FCDO), Ms Stewart passed emails to a journalist showing that the government was putting lives at risk by mishandling the evacuation of Kabul. After her identity was discovered by her employer, her security clearance was revoked and she was dismissed. Ms Stewart started a claim for automatic unfair dismissal due to whistleblowing and a preliminary hearing has yielded an interesting judgment.
In establishing her reasonable belief that she should come forward, Ms Stewart sought to rely on statements given to the Foreign Affairs Select Committee. Lawyers for the respondent argued that this would breach Parliamentary Privilege, the principle that things said in Parliament cannot be challenged in the courts.
An interim judgment from the employment tribunal was a mixed result: some elements of the evidence were struck out, and others were allowed.
Protect Comment: Though the judgment represents a partial success, the case illustrates the clear challenges that civil servants face as whistleblowers. Civil Servants have a key role to play in holding government to account, and reform of the law is needed to ensure they can do without fear of repercussions. These should include an independent statutory commissioner, with broad powers to investigate public interest disclosures –, as recommended by the Law Commission – and a public interest defence for whistleblowing on national security issues.
Mr Pitman was a Consultant Obstetrician and Gynaecologist at an NHS Trust. After a merger with another hospital, he and other staff became concerned there had been a negative impact on patient care. Mr Pitman raised his concerns repeatedly, but faced consistent pushback from managers, who criticised his communication style as critical and upsetting. He was subsequently subjected to a to conduct investigation.,
The tribunal confirmed that Mr Pitman had blown the whistle on patient safety concerns, but ultimately agreed with the employer that there was a separate reason for the complaints made against him and the various investigations and performance-related processes he was subject to, namely his communication style and the subsequent breakdown of his professional relationships. The Tribunal also found that the Trust had taken steps to address the concerns early on in the process,.
Protect comment: The case illustrates the difficulties that NHS workers and trusts alike face in managing whistleblowing. The act of whistleblowing is difficult and a breakdown in relationships with colleagues is often the inevitable consequence where there isn’t a healthy speak up culture, particularly when it occurs in stressful situations about serious concerns. The case shows that the law needs to take a more sensitive view of the challenges facing whistleblowers and ensure they are not unduly penalised for the knock-on effects of their whistleblowing.
Dr. Ranson, the Medical Director of the Isle of Man Department of Health and Social Care during the 2020 coronavirus pandemic, raised concerns about the government’s response and the accuracy of information being provided to the public. She raised concerns that that her medical advice – that the borders should be shut to prevent the hospital being overwhelmed – was not being heeded or relayed to government ministers effectively. One of her key concerns was that government publications presented a misleading image of the pandemic’s risks of spreading uncontrollably.
The Tribunal concluded that she had made protected disclosures, and that she was subjected to detriments and unfairly dismissed for that reason. As a result, she was awarded £3,198,754.00 in compensation.
A noteworthy aspect of this case was the DHSC’s failure to provide relevant documents in a timely manner, with some crucial documents only becoming available through a data subject access request. As a result of their conduct in the proceedings, they were ordered to pay 70% of the claimant’s costs.
Protect Comment: The large award made in this case should serve as a reminder that damages are uncapped in whistleblowing claims. Though the result is a vindication for Dr Ranson, the case is also a stark illustration of the challenges whistleblowers face, and the importance of robust legal protections for those who speak out in the public interest Dr Ranson had legitimate concerns about public safety, and had they been headed earlier, lives could have been saved. Employers should be thanking whistleblowers, not victimising them, and they – and the public – may pay a heavy price if they get it wrong.
This case involved the former Chief Risk Officer (CRO) at the UK branch of Pakistan’s largest bank, United National Bank. Mr. Daniels held a regulated position with individual accountability under the senior managers and certification regime, requiring approval from the Prudential Regulation Authority (PRA). He made 11 protected disclosures, alleging that the bank breached its risk management framework, itself based on Prudential Regulation Authority rules.
United National Bank argued that the risk management rules were not independent legal obligations and were more like ‘principals of good regulation’. However, the Tribunal disagreed, considering Mr. Daniels’ role and expertise when evaluating his reasonable belief that the risk management framework constituted the fulfilment of the bank’s obligations under the PRA rulebook.
While this decision is a first-instance one, it serves as a valuable indication that employers cannot simply rely on a defence that internal rules are not legally binding obligations. In a remedy hearing in March 2023, Mr. Daniels was awarded £138,000.
Protect Comment: The court’s broad approach to what constitutes a reasonable belief in a legal breach is a victory for integrity in financial services. While not providing any precedent, this case demonstrates that concerns about a breach of internal rules can qualify as a protected disclosure, and employers should not dismiss such concerns lightly.
Ann Henderson, a former senior embryologist and laboratory manager at TCP GRFM Fertility Clinic in Glasgow, Scotland, won her claims of whistleblowing detriment and unfair dismissal against the clinic. Ms Henderson repeatedly raised concerns about various practices at the clinic, including staff shortages, excessive workloads, and inadequate training, which she believed posed an unacceptably high risk of errors.
The clinic had undergone a change in management in 2018, transitioning from private healthcare company Nuffield to TFP Fertility. Despite Ms Henderson’s persistent reports of issues, which included mishandling of patient eggs resulting in low survival rates, her concerns were dismissed by management.
The tribunal heard that her claims were dismissed because the clinic wanted to maintain patient numbers and income. Ms Henderson felt singled out and unfairly treated.
The Tribunal found that Ms Henderson had made protected disclosures, but they were not the ‘sole or principal reason’ for her dismissal, and so her claim for automatically unfair dismissal due to whistleblowing failed. She was, however, successful in establishing that her employer had unlawfully subjected her to detriment due to whistleblowing, and she had been unfairly dismissed. Ms Henderson is appealing the decision of automatic unfair dismissal to the Employment Appeal Tribunal.
Protect Comment: This case demonstrates that there can be benefits to bringing several different claims against an employer. The very high causation test for a whistleblowing dismissal case can be a difficult barrier for whistleblowers seeking compensation. However, bringing claims for detriment due to whistleblowing and ordinary unfair dismissal can afford some relief to a dismissed whistleblower.
This year saw the publication of the remedy award in this case, first heard in 2018. After finding that Dr Macanovic had made protected disclosures, and been unlawfully dismissed and victimised because of that, the Employment Tribunal turned to the question of remedy.
For a series of detriments including verbal abuse, exclusion from meetings, and the deliberate assembling of complaints as a pretext for a disciplinary investigation, Dr Macanovic was awarded £24,000 compensation (plus £9,000 in interest) for injury to feelings. This represents the upper end of the ‘middle’ Vento band for such awards. The Tribunal held that though detriments were serious and upsetting, there was not medical evidence to show significant long-term impact, which would have pushed it into the top band. This was in addition to £186,697 for unfair dismissal.
Interestingly, the decision to initiate formal disciplinary proceedings, and all subsequent detriments, were excluded from this assessment of injury to feelings. This was because they were held to be part of the dismissal process, for which injury to feelings awards are not available.
Protect Comment: This demonstrates that awards can be made for the intense psychological harm that is too often inflicted on whistleblowers. In such cases, it will be important to produce medical evidence demonstrating the specific scale of the harm. Here, the claimant’s inability to prove long-term psychological impacts were what prevented her from reaching the top band of injury to feelings compensation.
Mr Green was an assistant curate in the Church of England who raised concerns about safeguarding in the Diocese and wider Church of England. As a result, his ordination as a priest was delayed and he went to the Employment Tribunal, alleging that this was a form of whistleblower victimisation. The Diocese tried to have his claim struck out, arguing that he was not a ‘worker’ for the purposes of employment law.
In a preliminary hearing, the Tribunal decided that Mr Green was in fact entitled to rely on whistleblower protections. Applying the case of Gilham v Ministry of Justice, the Tribunal held that, though clergy are not ‘employees’ in the strict legal sense, they are in an analogous position to a worker and so the law should apply.
Office-holders such as clergy, judges and trustees are not ‘workers’ in a strict legal sense, and are not typically covered by employment law protections. However, in this case, the court considered the fact that Mr Green had real obligations and duties to perform work, and that the Diocese was clearly not his ‘client or customer’. Applying principles from the European Convention on Human Rights, the Tribunal held that to deny Mr Green whistleblower protection on the basis of his status as an office-holder would be an unjustifiable restriction of his freedom of expression.
Mr Green may now pursue his claim to detriment due to whistleblowing. The case is ongoing.
Protect comment: This is an important decision applying Gilham to novel facts and indicates its reach in establishing rights afforded to office holders in analogous situations to workers. While we were pleased Mr Green was successful, we are concerned that individuals bear the burden of establishing whether they are protected through lengthy and complex litigation, often without legal representation as in this case. Only legislative change to extend whistleblower protections will ensure that the law is fair and easily accessible to all. Protect is campaigning to extend the scope of the law for this reason.
Ms Ajaz made protected disclosures and claimed she suffered detriment because of them in 2017. She settled her claim by a COT3 in which she agreed not to reactivate ‘the issues/complaints in the proceedings or issue any further and/or new claim or claims […] against [the Trust…] arising from or in relation to the issues/complaints in the proceedings’. In 2021 she brought a new claim for the new further detriments that took place after the signature of the COT3. These detriments were not the same ones as those settled in the 2017 claim, but she said they were caused by the same protected disclosures. The employer asked for these claims to be struck out.
The Employment Appeal Tribunal held that a claim of further (new) detriments (even when caused by the same protected disclosure) cannot be said as being the same complaint as the original claim of (the old) detriment. The detriments were different, therefore they were different claims even if some of the conditions to be fulfilled (or what the respondent called ‘necessary ingredients’) were the same as for the 2017 detriments. But the EAT also held that raising further detriment claims arising from issues settled was an ‘abuse of process’ because they attempted to relitigate the issue of the same protected disclosures, which Ms Ajaz had agreed were settled in the COT3. Ms Ajaz could bring future claims but not to the extent that they reactivated the issues in the proceedings.
Protect Comment: This is a potentially worrying decision based on an unusual set of facts. Whistleblowers who settle their detriment claim may not be able to access the protection of whistleblowing law if they want to claim further (new) detriments arising from the same protected disclosure. The wording of the settlement agreement or COT3 will be key. It is important that whistleblowers get proper legal advice on the effect of any settlement agreement.