If you are thinking of making a whistleblowing claim at an Employment Tribunal, read this first. You need to have realistic expectations and an understanding of the associated risks.
Those of you who are old enough to remember will recall that the original whistleblowing rules were brought into effect by the Public Interest Disclosure Act 1998 (PIDA) following a series of high profile disasters such as the ‘Herald of Free Enterprise’.
Reports suggested that staff had been aware of the risks in some cases but were too scared to raise their concerns, or had done so in the wrong way.
PIDA created two levels of protection for whistleblowers.
- It is automatically unfair to dismiss an employee if the reason, or principal reason, for their dismissal is that they have made a "protected disclosure"
- And an employee will be protected from being subjected to any detriment on the ground that they have made a "protected disclosure".
There is no financial cap on compensation in whistleblowing claims and no requirement for a minimum period of service. This means that from an employee perspective a whistleblowing claim can be both lucrative and frightening for their employer. For this reason, there was a perception that employees would make tenuous whistleblowing claims in order to boost their negotiating position.
Changes to the whistleblowing regime came into effect in 2013 which included that:
- a disclosure is only protected if the worker reasonably believes that it is being made in the ‘public interest’;
- the disclosure no longer has to be made in ‘good faith’;
- however if the disclosure is not made in good faith, compensation can be reduced by up to 25%.
The requirement of a ‘public interest’ aligns the law more closely with its original intention but does not entirely close the door on more spurious claims. In reality relatively few whistleblowing claims ever make it to a final hearing at an Employment Tribunal. They settle.
Employees will still bring weak claims in order to boost their negotiating position and employers will still settle weak claims to avoid the cost of litigation or to avoid embarrassing issues making their way into the public domain.
This is unfortunate because it detracts from claims which have genuine merit and creates a perception that the law is being abused. There is also a risk that cases are over complicated (and thus become expensive to run) because employees raise multiple issues and causes of action, the majority of which on a proper analysis are doomed to fail.
It may seem like a good idea to put in a tribunal claim that is long and raises lots of issues, but often this can backfire.
It is often said that the best claims are those which are the most straightforward. A genuine whistleblower should not be afraid of asserting their rights, but it is important that if they decide to bring a claim they get the correct advice. Whistleblowing claims are expensive cases to run and there is a risk that without the correct advice an employee will have an unrealistic expectation of success and may spend lots of money on a case that is simply not sustainable.
At Moon Beever we have experience of bringing whistleblowing claims and have recovered substantial awards for claimants in a variety of work environments. However we will always be transparent on the issue of costs and risk and what a claimant is likely to recover.
This blog is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained.