Wrongly identified as a whistleblower
PIDA does not offer protection to workers victimised or employees dismissed because their employer wrongly believes they have blown the whistle. For example, the employer may wrongly believe their employee has raised concerns with a regulator, or the media. Alternatively, the employer may think that an employee is about to raise a concern, and dismiss them before they can do so.
In these situations, PIDA protection will not be triggered as the employee cannot link a whistleblowing disclosure to the dismissal or victimisation – because they have not made a disclosure. While whistleblowing dismissals are automatically unfair – no length of service is required – an employee does not have the protection of ‘ordinary’ unfair dismissal procedures unless they have over two years’ service with their employer.
A recent case in the employment tribunal Bilsbrough v Berry Marketing Services Ltd highlights how a person can be wrongly identified as a whistleblower. Mr Bilsbrough, a Client Service Executive for a software company raised concerns about a potential data protection breach to a director of the company, rather than his line manager. When the line manager found out about this, she chastised Mr Bilsbrough. He objected and told a colleague that he would “take the company down”. He began to research how to make a whistleblowing disclosure to regulator, the Information Commissioner’s Office. The colleague informed the employer, leading to Mr Bilsbrough being suspended and later dismissed. The suspension letter linked his suspension to the fact that he had researched ways of making a protected disclosure.
The employment tribunal found in Mr Bilsbrough’s favour. It decided that whistleblowing law must apply to a worker who takes preparatory steps to make a disclosure, and is then treated poorly by the employer.
This decision is not binding on future tribunal decisions. This means there is a large degree of uncertainty around the law in this area.
Protect believes it is important for PIDA to be expanded so protection covers people wrongly identified or victimised for considering raising a concern. This would follow the current protection in the Equality Act – for example, legal protection for sexual orientation is available if an employer wrongly believes someone is homosexual or heterosexual and discriminates on this assumption.
Protect’s draft whistleblowing bill would widen the legal protection.
Clause 5 of our whistleblowing bill states an employer must not discriminate, harass or victimise any individual because it appears to the employer that the individual has made or may make a protected disclosure.
Whistleblowing affects us all. Protect’s campaign Let’s Fix UK Whistleblowing Law needs your support. Click the banner below to write to your local MP.