The law on whistleblowing is changing and it’s changing massively.

If the reason or principal reason for an employee’s dismissal is the fact that they have made a “protected disclosure” (in other words they have blown the whistle), then the dismissal is automatically unfair. Unlike in ordinary unfair dismissal cases, there is no need for an employee to have been employed for the usual 2 year qualifying period to be able to bring that claim. Also, the usual limit of up to 12 months’ gross pay for damages capped at £86,444 (as of 6 April 2019) for future loss of earnings in ordinary unfair dismissal cases is removed and the potential compensation for whistleblowing unfair dismissals is therefore unlimited.

That all stays the same but here’s the big change.

Workers and employees also have the right not to be subjected to a detriment by their employer, fellow worker, or authorised agent of the employer on the grounds that the worker or employee has made a protected disclosure. If this does happen, then the employee is entitled to damages to compensate them for any loss and also an award for injury to feelings which can be up to £42,700. However, under the section 47 of the Employment Rights Act 1996, an employee’s dismissal does not count as a “detriment” so even if an employee is automatically unfair dismissed for having blown the whistle, the employee can’t claim any compensation for injury to feelings.

Until now.

In the recent case of Osipov v International Petroleum, the Court of Appeal confirmed that individuals (e.g. Company Directors, line managers etc) could be personally liable for dismissal-related detriments inflicted by them on whistle-blowers.

And this is a huge development for many reasons:

  1. 1. It means that a whistleblowing detriment claim can be brought against a manager personally for a detriment such as subjecting the whistle-blower to a disciplinary procedure. This means that the whistle-blower needs only to establish that their protected disclosure was a significant influence in the decision to terminate their employment, without needing to establish that it was the sole or principal reason for the dismissal.
  2. 2. This may then entitle the whistle-blower to an award to injury to feelings of up to £42,700.
  3. 3. The award may be made against the individual manager. This is particularly important if the employer is a limited Company which could put itself into administration or liquidation to avoid paying any award. An award then against an individual, who may have assets such as a house, could prove invaluable.
  4. 4. Tactically, it can create huge conflicts of issue between the employer and the manager which may increase the pressure to settle.

The overall impact of this decision is that it enables employees to indirectly bring claims for whistleblowing-related dismissal against their employer and/or the decision-making managers and employees. And remember – the burden of proof for a detriment claim is lower than for an unfair dismissal claim.

So that’s good news for employees but very bad news for employers.

Employers need to take particular care when contemplating dismissing someone who has made a protected disclosure and need to make sure that their whistleblowing policies are up-to-date and well understood by all employees.


Carl Moran

cxm@sdmlegal.co.uk

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