TRANSCRIPT OF WEB SEMINAR
THOMAS CROXFORD
WHISTLEBLOWING
9TH MARCH 2009
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About the Speaker:
Thomas Croxford
Thomas Croxford specialises in restrictive covenant and confidentiality work as well as high
value discrimination, PIDA claims and TUPE disputes. He is described in the legal directories
as “a team player, plain speaking and extremely bright”, “exactly what you want in a barrister”
and “always inspires confidence”. He has been a member of the Employment Lawyers’
Association’s management committee since 2001 and is widely regarded as one of the
leading employment lawyers at the junior Bar.
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FORTHCOMING WEBINARS
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Daniel Barnett (Chairman): Ladies and gentlemen, welcome to this live web seminar on
whistleblowing. I’m here this afternoon with Tom Croxford from Blackstone Chambers.
Unfortunately Paul Goulding isn’t able to be with us today because he is litigating a very large
whistleblowing action in London Central, and Tom has kindly agreed to step in and cover both
halves of the talk.
What I’m going to spend the first few minutes doing is explaining to you how webinars work,
for those of you who haven’t participated in one of these sessions before. You should see in
the upper left hand side of your screen a moving video image of me. To my right there is a
slide that says “Chairman’s introduction”. Just above that box are a number of tabs which you
will see just there, and I’m going to talk you very briefly through each of them and how they
work.
The first tab that you can see is “Slides”. If you ever get lost during this presentation tick the
“Slides” button and that will bring you straight back to the page that you’re currently on at the
moment, and you’ll be able to watch the PowerPoint slides as Tom is going through his talk.
The second tab is “Questions”. That’s an important tab because that’s the tab that you use to
communicate with us during the course of this webinar. What I’m going to do, just to give you
a little test in trying out the “Questions” tab, is run a very short champagne quiz. Those of you
who’ve done this before will be familiar with the procedure. If you click the “Questions” tab—
don’t do it yet because I’m going to put the question up on the screen in just a moment—but if
you click the “Questions” tab you’ll see a box where you can type a question and a box where
you can type your name and your firm. What I’m going to do is ask you a very simple
question—or perhaps it’s not that simple, we’ll find out—relating to whistleblowing, and the
first person to successfully or correctly answer that question and send the answer back to us
using the box under the “Questions” tab wins a bottle of champagne.
The question is this… it should be coming up on your screen right now: To succeed in an
application for interim relief, within how many days of dismissal does the claimant need to
present his or her ET1? To succeed in a claim of interim relief, within how many days of
dismissal does the claimant need to present his or her ET1?
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For those of you who don’t know, a claim for interim relief is a very unusual type of claim in
whistleblowing and also in some trade union related cases, where if a claimant presents their
ET1 within a certain number of days of dismissal, then provided they can show they’ve got a
pretty good chance of winning the claim, the Tribunal will set up a quick hearing to make an
Order for continued employment pending a full merits hearing, and they remain entitled to
their full salary all the way up until the Tribunal decides the case one way or the other, three or
six months down the road, and they get to keep that salary even if they lose at the end of the
day. So it’s a very powerful remedy for a claimant in a whistleblowing case who acts quickly.
It’s under s.128 of the Employment Rights Act 1996.
Now hopefully many of you will have answered the question. The first person to answer it
correctly is Catherine Gray from Pritchard Englefield. Well done Catherine! If you could also
just type into the question box an address to which you would like the bottle of champagne to
be sent that will be arranged within the next few days. Congratulations!
Click the “slides” tab again now: if you have moved off the slides tab, you will see that the third
tab is “Biogs”. That gives you a short biography about Tom, to whom I’ll be coming in just a
moment.
The fourth tab is the next important one. It’s “CPD”, and in order to get your two hours of CPD
for the Bar Standards Board or the Law Society you need to answer six out of ten multiple
choice questions correctly. That’s to show that you’ve watched and understood the contents
of the talk. The talk will not qualify for CPD unless you’ve answered six out of ten. So click
“CPD”, type in your name and your email address, answer the questions and, assuming you
get six out of ten, an email containing a CPD certificate will be sent immediately to you. You
get five opportunities to answer it correctly, so don’t worry if you don’t get six out of ten first
time around. There’s lots of opportunity to read the transcript again or watch the seminar
again and try the questions again and get them right.
The fifth and sixth tabs are fairly self explanatory. “Unable to see video” does what it says on
the tin—it’s a troubleshooting guide. And “Feedback form” is a form that will send your
feedback about this webinar direct to CPD Webinars, so if you fancy suggesting some other
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topics please do so using that feedback form. That form is not to ask questions during the
webinar. We won’t see them on the screen, so please don’t ask them for that purpose.
I’m going to come now to Tom who is a leading junior barrister at Blackstone Chambers.
Many of you will recognise him from a previous webinar and, indeed, from his high profile
within the profession generally. He’s recognised by both the Legal 500 and Chambers &
Partners as one of the leading juniors in employment law. He has been described as
wonderfully intelligent, as a charming TUPE guru. He doesn’t hedge his bets, according to the
Legal 500, and delivers sound practical advice. Most importantly, according to Chambers, he
fights a good battle. He’s been involved in some very, very, high profile whistleblowing cases,
including successfully defending the Specsavers Optical Group against a £600,000
whistleblowing claim in the recent past. He acts very often for and against hedge funds,
investments banks, private equity houses and other city organisations in relation to
whistleblowing claims. His roll of reported cases is impressive. He has a regular feature
within IRLR and ICR and we are very lucky to have him talking to us today on whistleblowing.
So, without any further delay, I will hand over to Tom to talk about whistleblowing.
Thomas Croxford (Speaker): Kind words, thank you Daniel. Paul, sadly, is not with us, as
Daniel points out, which means that I get to explain to you that various propositions on the
slides are, of course, incorrect. Perhaps if Paul were here he would have changed his mind
on some of them, having heard the—no doubt—trenchant submissions by his opponent in
London Centre in relation to them, but before we come on to those disagreements between
Paul and I that you would have had in full glory, but instead just have my version of, let’s just
look at the importance of the whistleblowing legislation.
The first is that there is a public policy in favour of whistleblowers. The second is that
victimisation of whistleblowers is, effectively prohibited under the various pieces of legislation.
The third, very important for claimants, is the fact that compensation is uncapped and that
means that whistleblowing claims are often the very highest value claims before the
Employment Tribunal. And fourthly, and again, of course, one should never forget if one is
acting for a claimant, the whistleblowing claim almost invariably carries with it significant
embarrassment for the respondent. The respondent will be concerned about these matters
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hitting the public domain and, therefore, most of these cases settle before they come to the
Tribunal, sometimes at the very last moment.
Let’s move on from there and look at the background to this legislation. There were, as those
with long memories and old heads on them will remember, various human disasters, of the
80s in particular, that resulted in public enquiries—in particular the Herald of Free Enterprise
ferry disaster, the Clapham Junction train crash, and the BCCI disaster, a banking disaster on
a scale comparable with the ones of the present. Those public inquiries showed that there
were employees within those relevant organisations who knew more about what was going on
and what was going to happen than they had made clear to their employers or the third
parties.
That gave rise to the creation of Public Concern at Work. Public Concern at Work is a
campaigning charity that is the whistleblowing charity. That was set up in 1993, and through
their efforts, and very largely through their efforts, by the time that the new Labour
Government came in, in ’97, there was a ground swell of opinion in favour of whistleblower
protection. That was one of the early Acts of the new Labour Government, the Public Interest
Disclosure Act of 1998. That came into force a year after it was voted in to law, on 2nd July
1999.
What was it for? Well, as was said by Lord Justice Mummery in ALM Medical Services and
Bladon, the self-evident aim of the provisions is to protect employees from unfair treatment,
i.e. victimisation and dismissal for reasonably raising in a responsible way genuine concerns
about wrongdoing in the workplace. We’ll come to see, as we run through the issues of this
afternoon, the extent to which that is a concise explanation of those who qualify for protection
under this legislation. I think we’ll see that it is not a particularly accurate depiction of that.
And so, what are the relevant pieces of legislation? Well, what was done by the Public
Interest Disclosure Act was to insert various provisions within the Employment Rights Act, and
so the definition of protected disclosures is contained within Pt 4A, and then in Pt 5 we deal
with protection from suffering detriment in employment. In Pt 10 we have the unfair dismissal
regime added to by s.103A and, lastly, we have a statutory instrument, the Public Interest
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Disclosure Prescribed Persons Order of 1999, which identifies some entities to which
disclosures can be made.
Let’s just start with a recap of the basics. A protected disclosure means a qualifying
disclosure, which is defined in s.43B, which is then made by a worker in accordance with any
of the following sections: 43C to 43H. One moves on to the consequences of that and the
concept of detriment. A worker has the right not to be subjected to any detriment by any act
or any deliberate failure to act by his employer done on the grounds that the worker has made
a protected disclosure, and we’ll come back to all of the constituent elements of that a bit later.
Lastly on the basics front, an employee who is dismissed shall be regarded as unfairly
dismissed if the reason (or if more than one, the principal reason) for the dismissal, is that the
employee made a protected disclosure. That’s the s.103A provision.
So on to the structure of this webinar. First, I’m going to deal with what a qualifying disclosure
is. Next I’m going to deal with how you make a qualifying disclosure. Thirdly, we’ll consider
protection from detriment and, fourthly, we’ll consider the various heads, the protection in
relation to the unfair dismissal regime.
So, what is a qualifying disclosure? A qualifying disclosure means any disclosure of
information which, in the reasonable belief of the worker making the disclosure, tends to show
one or more relevant failure as set out in ss.(a)–(f). It’s important to note that the relevant
failure, the wrongdoing in short, can be in the UK or elsewhere, and it can be wrong under UK
law or foreign law. This is a provision that has significant international scope and, indeed,
many of the cases throw up instances of the international nature of many of these instances of
wrongdoing. Often the cases arise within multi-national corporations, and that is why one
sees this partly international focus. It’s important to remember though that this is within the
Employment Rights Act, and so the territorial scope of the legislation is probably, as with the
rest of the Employment Rights Act, set out within the well-known decision in Lawson and
Serco. That, in a complicated detriment case in particular, may offer some potential to bring
claims within the UK even where one might otherwise think they should be brought outside the
UK.
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So, let’s look at the five parts of the qualifying disclosure. It’s a disclosure of information with a
belief which must be reasonable that it tends to show one or more relevant failure. Starting at
the beginning, plainly there must be some disclosure. Now, we know from the cases that
disclosure in this context doesn’t have some special meaning. It is ordinary English to be
treated as such and, thus, whether there is a disclosure is a question of fact rather than a
question of law.
This was thrown up most starkly in the case of Bolton School and Evans. A case, I should say
immediately, was subject to some particularly expert representation, no doubt, on both
sides—Mr Daniel Barnett appearing for the sadly unsuccessful party in this case. No doubt he
will correct me when I diverge from the facts, but the long and short of it was that there was an
employee of a school who formed a view that the school computer system was vulnerable to
hacking and so, to demonstrate this, he hacked into the system to demonstrate how
vulnerable it was. He did in fact hack into the system. Plainly it was, to some extent at least,
vulnerable. In doing so he caused some problems for the school in operating because he
disabled part of the system without a relevant part of the school understanding what had
happened, and so they closed down the entire system. Now the case critically proceeded to
the Court of Appeal on the issue of whether that hacking was capable, in and of itself, of being
a disclosure of information, and the court held that it was not a disclosure of information. The
hacking was, if you like, a free standing act of misconduct, and when he was disciplined for
that, that was not a consequence of his protected disclosure or part of that protected
disclosure. Put another way, he was not disclosing information to the school by his act of
hacking, though of course he was separately disclosing information at the same time—that the
school systems were vulnerable for hacking.
It shouldn’t be taken as being the be all and end all of this issue though. There are perhaps
two other cases that are worth just thinking about in this context. There was the related case
of Aspinall where an employee videotaped part of the production process of the company and
that videotaping led to his disciplining. That, again, was not viewed as being a protected
disclosure.
But on the other side, under a reported case called Odong, where an individual refused to
book what he considered to be an improper trade, and the EAT held in that case that that
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refusal might be a disclosure of information and, in my view, an act is capable of being a
disclosure if it’s necessarily part of that act to disclose something. So refusing to comply with
an unlawful instruction may well disclose the fact that you believe it to be an unlawful
instruction and one that, therefore, should not be complied with. The other end, though, an
act that would itself amount to misconduct, may be harder to identify as being a protected
disclosure.
Move on to another potentially tricky area. Is there a disclosure when the recipient of the
information is already aware of it? Well, one might think no, because you’re not truly
disclosing the information in those circumstances, because the person already knows about
that information. The position is made clear within the context of Pt 4A by s.43L(3), which
makes specific reference to the fact that a disclosure of information shall have effect in
relation to any case where the person receiving the information is already aware of it as a
reference to bringing the information to his attention.
Well, you would have thought that was the end of issues surrounding this.
But no, the case of Everett Financial Management Limited v Murrell raised in the EAT, back in
2002, the issue of whether the person who is disclosing the information, where he knows that
the recipient is already aware of that information, thereby discloses the information. The
answer given by EAT was, no, if the discloser knows the recipient already knows it then it is
not a disclosure of information. You would have thought, given the provision that we’ve just
looked at, 43L(3), that the decision of the EAT on this aspect would centre on 43L(3), whereas
in the case of Everett v Murrell it doesn’t even mention that provision.
What’s the answer? Well, one might think that the advocates have failed to mention 43L(3)—
had overlooked it. Because, of course, it’s the very last provision and isn’t well signposted
within Pt 4A. But how can that be? The advocates in question were Nicholas Underhill QC,
now President of the EAT, and Brian Langstaff QC, now Mr Justice Langstaff, and also a
regular judicial attender at the EAT. It seems hard to believe that they didn’t mention it. I
think we are left not knowing. For my part, it seems a surprising decision if, in fact, it was a
decision taken in full knowledge, particularly given the absence of reasoning on this aspect.
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Next, is it a protected disclosure if the disclosure was made after the termination of
employment? Well, perhaps a prior point before we get to that, but I’ll come on to it later. As
we’ll find out later, a disclosure made pre-termination that results in detriment post-termination
can give rise to a detriment claim. Can the entire cause of action accrue after termination
though? Well, there’s no binding decision on the point. It’s perhaps worth looking, if one ever
has that case, carefully at the decision of the Court of Appeal in Woodward & Abbey National
No.1 back in 2006 because, in the view of Lord Justice Ward, there may be a good argument
for saying that the action of the employee which provokes the retaliation must be some activity
during the currency of the employment. Certainly, if one stands back for a moment and looks
at the scheme of the legislation, it seems to me likely that the disclosure itself must be within
the context of that employment relationship, or wider relationship of worker and person to
whom work is provided.
Next, looking at the information, the next category. Well, plainly there must be some
information conveyed which is disclosed by the worker and so, again, back to Everett v
Murrell—a petition which conveyed no information but simply sought assurances that an
employer would not engage in an unlawful activity is not a disclosure of information. One
might also see that as, in truth, not being information which tends to show the likelihood of a
relevant failure. Again, always important to remember that simply voicing a concern or stating
an objection doesn’t necessarily mean that information is disclosed other than as to the
worker’s state of mind and willingness to engage in unlawful activity.
Next, we move on to the issue of belief, and this is a very knotty issue in relation to
whistleblowing. First, the worker must believe that the information disclosed tends to show a
relevant failure. Again, stopping there, jumping forward, it’s worth noting that most disclosures
do not require the worker to believe that the information is true, but the worker must believe
that the information disclosed tends to show a relevant failure and it’s a subjective question.
What does the worker, in fact, believe?
Following on from there, he may hold the belief as to what it tends to show, even if the belief
turns out to be wrong, and the fact that the information which the worker believed to be true
does not, in law, amount to an unlawful act. Indeed, breaking it down, he may be wrong in
every possible respect. The information itself may not be true, it may not tend to show the
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breach of any obligation and, indeed, the obligation which he thinks it tends to show is
breached may not exist, but it may still be, even in those circumstances, a qualifying
disclosure.
Following on from there, the belief must be that the information disclosed “tends to show” (not
“shows”) a relevant failure. What I think is meant by that is that information, the inferences,
may be drawn from the information that is disclosed in order to show, in order to “tend to
show”, that there may be a relevant breach. Putting that away, the information may not
directly be evidence of breach but may be evidence which, perhaps with other information as
well, “tends to show” that there is such a breach.
And the authority from that is the quite peculiar case of Babula v Waltham Forest College,
which is worth a look if you ever want to see how extraordinary a whistleblowing case can get.
In that case Mr Babula made his protected disclosure, so he said, to both the CIA and the FBI
in relation to the conduct of a fellow teacher at Waltham Forest College. Not an issue that is
going to arise for many people when they’re dealing with these claims. So, the belief itself
must be reasonable—an issue that was going to crop up in relation to Babula. The belief
must be reasonable.
And this is an objective question: is the belief of the worker reasonable? In fact, all of the
circumstances must be considered together in determining whether the worker holds the
reasonable belief and, of course, in determining that one can put back in the issues of whether
he believes the information itself is true, because where a worker can’t show, or doesn’t show,
the information underlying that is true, it may be harder for him to show he reasonably
believes it tends to show a relevant breach, and that is why one gets into most cases the
factual accuracy of the underlying information. That factual accuracy will often be very
important and, indeed, his understanding of the nature of the legal obligation will often be very
important, because the less clear the employee is as to the underlying legal obligation that he
says is breached, the less easy it will be for him to say he reasonably believed that the
information tended to show a breach of that obligation. Vagueness on the part of a
whistleblower may well be fatal to his claim.
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What are the relevant failures that we’re concerned with that we have been discussing so far?
Well (a) is that a criminal offence has been committed, is being committed, or is likely to be
committed; (b) and this is in general the most important single head, is that a person has
failed, is failing or is likely to fail to comply with any legal obligation to which he is subject; (c)
that a miscarriage of justice has occurred, is occurring or is likely to occur (and that’s
probably the single rarest head of whistleblowing case); (d) that the health or safety of any
individual has been, is being or is likely to be endangered; (e) the environment has been, is
being or is likely to be damaged; or (f) that the information tending to show any matter falling
within any one of the preceding paragraphs has been, or is likely to be, deliberately
concealed.
Well, that last one is a rare one as well because one necessarily has to show to get to that
that one of (a) to (e) is in play and (f) is therefore an additional hurdle over and above showing
(a) to (e). So what is the meaning of “likely” in the phrase “is likely to” be committed or failed
to comply, etc. in 43B(1). And if it helps one can just go back to look at that slide just to see,
and so in (a) criminal offence is likely to be committed…[jump forward again].
Well, so we are told by the case of Kraus v Penna Plc, which has been overruled on its central
point but is probably still good law on this point. Likely means probable, i.e. at least a
reasonable prospect, a 51 per cent probability, a pretty good chance. That is, on that
analysis, a fairly high threshold, not just a chance that the employer will breach a legal
obligation but that he is probably going to do that. It causes particular problems in some
cases because if, in fact, it is the whistleblowing event that makes it less likely that the
employer will breach his legal obligations, how does one then analyse it? Also, the fact the
threshold is so high may, in itself, scupper various disclosures.
Take as an example if an investment bank a couple of years ago, or the Northern Rock… one
had said the Northern Rock would be completely destroyed if there is a property market crash
of say 20 per cent, which was the truth back then, one might well have had to say that was
improbable and, therefore, a breach of banking covenants was unlikely.
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Next, we reach the issue dealt with in Parkins v Sodexho… I’m going to come on to which is:
Does an employer’s breach of the worker’s employment contract qualify as a failure to comply
with the legal obligation within s.43B(1)(b)?
This slide is one of the ones prepared by Paul. I don’t really agree with it. He is of the view it
doesn’t fit well with the public interest purpose of PIDA, which is to protect individuals who
make certain disclosures of information in the public interest. He notes the fact that this was
emphasised during Parliamentary debates. Of course, that was the reason why the legislation
was brought into force. As Lord Borrie said: “It is not concerned with a worker who wishes to
disclose some malpractice for his own ends, possibly to try to gain a private advantage. As
the title of the Bill clearly indicates, it is concerned with the public interest.”
We then note Parkins v Sodexho, which is cited in support of the proposition. Well, Paul
suggests it’s open to question whether it does, in fact, support this proposition. I’m afraid I
disagree. I think it plainly supports the proposition. It’s central to Parkins v Sodexho that legal
obligation is to be read widely, encompassing any legal obligation rather than simply statutory
obligations, which was the nub of the argument before the Tribunal in that case. He suggests
it’s arguably wrong. I see no reason for thinking that to be the case. Legal obligation is drawn
widely and rightly so. One can make a disclosure of information tending to show such a
breach. Why should you limit legal obligation in an artificial way to avoid that?
In my view the final bullet point, though, does address the key issue here, which is if the
predominant purpose of the disclosure of the work is personal interest, the disclosure may not
be made in good faith, and this is the point of Bachnak, and I agree with Paul. I think, on this,
we are at one—that if there is a route through the Parkins v Sodexho point it is very simply
that a worker who is making disclosures, purely in his own interests to get his own way, may
fall foul of the good faith provision. I don’t see that as inevitable. The answer surely is that in
most of the cases where a worker is complaining about breach of his own contract, it’s not the
disclosure that causes the ensuing problems, the ensuing detriment or dismissal, it is the
underlying breach of contact by the employer. If the employer wishes to breach, the employer
will breach. That does not mean that the employee thereby gains a whistleblowing claim
simply through having grieved that issue.
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Next part of the talk. Let’s look at how a qualifying disclosure is made, and there are various
bodies to whom one can make this qualifying disclosure: firstly, to the employer or other
responsible person; next to a legal adviser; next to a Minister of the Crown, in certain cases;
or to a subscribed person or to a third party.
Now taking those in turn.
A disclosure to employer is the classic form of protected disclosure. It’s set out in 43(c) of the
Employment Rights Act and the requirements are that it’s made in good faith to the employer
or, where somebody else is responsible for the relevant failure, that person—I’ll come back to
that in a second—or to a third party if the person is identified in the employer’s whistleblowing
procedure. Now the employer rarely causes a problem, it seems to me that if you disclose to
somebody as a representative of the employer, however senior, that will be a disclosure to the
employer. Disclosing outside that may well fall outside of the provision unless you reasonably
believe, in the words of the provision, the person to whom you are disclosing was responsible
for the conduct or holds legal responsibility for the relevant failure, and that seems to suggest
a relatively wide test in relation to that, and there is some case in relation to that, talking that
through.
The next form of disclosure is to a legal adviser. This is an unusual form of disclosure.
Indeed, there are very few cases, and no reported cases where this is the form of disclosure,
the disclosure made in the course of obtaining legal advice. There’s no requirement that the
disclosure be made in good faith. It encompasses bad faith, protected disclosures, but it’s
worth comparing back and forth because, of course, disclosure of the legal advice itself will
rarely be capable of being a protected disclosure. See 43(B)(4), particularly, not by the legal
adviser, and there are some little problems in relation to this. If you are advising a legal
adviser, an in-house lawyer, who wishes to bring a protected disclosure case, there are a
number of these cases that have been commenced and, indeed, a number I have been
involved with. The parallel provisions create some real difficulties. One of the key aims of the
legislation was to avoid general misuse of legally privileged information. There can be some
real problems though if you are the in-house lawyer giving uncommercial advice and your
employer decides to get rid of you because you are uncommercial, i.e. unwilling to bow to the
needs of the corporation. That may put an in-house lawyer in a very uncomfortable position.
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It seems to me that the underlying information though, may well give such an in-house lawyer
protection if disclosed in the right way.
Next, disclosure to Minister of the Crown; again, this relates to people in, in effect, Crown
employment of some form or another. It, again, notes the requirement of good faith. One
might hope that Ministers of the Crown would rarely victimise somebody for making
whistleblowing disclosures, but it remains to be seen.
The next head of disclosure is disclosure to a prescribed person, and this is to return back to
the statutory instrument that I referred to earlier. A good faith disclosure to a person within
that statutory instrument will be a protected disclosure if the worker reasonably believes the
matter is within the scope of the prescription and he believes the information to be
substantially true. So this is an example of a substantial truth requirement. You may not
make disclosures to regulators, as they are in the main, unless you truly believe it, believe the
information you’ve disclosed. This, in particular, encompasses disclosures to regulators in
relation to professional matters. So, if you make a disclosure to the FSA, if you’re working in
an investment bank, that will ordinarily fall within this provision but, again, note the
requirement of substantial truth and note the requirement of good faith. Those are separate
requirements, each of which must be met.
Finally, moving on to the forms of disclosure that perhaps one most commonly thinks of as
whistleblowing, and this is disclosure to third parties. One might think that disclosures to the
press were the key part of good whistleblowing, but, as we see, looking through these, it is
very rare indeed that disclosure to the press will, in fact, be a protected disclosure. It’s
required to be in good faith and reasonably believed to be true and not for personal gain (so
any form of kiss-and-tell stories are never going to be within this), and reasonable to make the
disclosure, and either will suffer detriment, or risk of consumers and destruction and no
regulator to talk to, or disclosure already made to the employer or prescribed person, but
again, whether it’s reasonable to make the disclosure outside may depend—will usually
depend—on the action taken by the employer having disclosed it first internally.
The next form of disclosure: disclosures of exceptionally serious failure. Well, so far as I am
aware no one has litigated the question of what an exceptionally serious failure is. One might
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have thought that to fall within the heads of disclosure in general it would be exceptionally
serious. Many would view criminal offences as being, of their nature, exceptionally serious,
but plainly it can’t mean all possible criminal offences. Again, the disclosure must be in good
faith, again, must be reasonably believed to be substantially true, again, not for personal gain
and, again, reasonable to make the disclosure. I think what this highlights is how rare it is that
going outside the organisation will, in fact, be an acceptable way of dealing with
whistleblowing. The organisation should have the chance to deal with it first before you even
think of going elsewhere.
Let’s look at “in good faith” though because this is a key provision in relation to all the
disclosures other than to a legal adviser. Street v Derbyshire is the key case on this and
emphasis was made clear on that case. The purpose of this legislation is to “remedy a
wrong”, protect those who are acting properly and appropriately to deal with improper
behaviour by others and so, as the court found in two judgments, the disclosure must be in
pursuit of a good motive or, as it was put in that case, if it is disclosure in pursuit of a
predominant ulterior motive then it’s not protected, and as was made clear in that case,
disclosure with mixed motives may not be in good faith, so disclosing partly because you want
to remedy a role and partly because you want to do in your boss may well put you outside the
protection of the legislation.
As was pointed out in that case, there are endless difficulties in this area. If, in fact, you
believe that your employer has acted wrongly, has acted inappropriately, is acting criminally,
you may feel less than charitable about it. Does that mean that you have an ulterior motive? I
would suggest plainly not, but back to the earlier examples that we considered of looking after
yourself, would then if you are raising a breach of your own employment contract suggesting
that that is a wrong, plainly you wish to remedy a wrong, you wish your employer to stop
breaching your contract.
Does that mean you’re necessarily outside the protection? I’d say not. You’re remedying a
wrong and, therefore, you have no ulterior motive. Plainly though, each case raises its own
peculiar difficulties, and it is an issue that is raised in an increasing number of whistleblowing
cases given this provision. It is not the classic definition of bad faith that we get in other
spheres. There wouldn’t appear to be the same obligations on barristers or solicitors avoiding
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pleading bad faith than there would be in relation to pleading fraud, for example, and so most
of the cases that one gets before the Tribunal, and indeed often before the Appeal Tribunal,
will revolve around this issue of the motivations of the person making the disclosures.
Moving on from there to the forms of harm that can befall an employee or worker arising out of
making a protected disclosure. The first part of the right is in relation to protection from
suffering detriment and so he has the right not to be subjected to any detriment by any act, or
any deliberate failure to act by his employer, done on the ground that the worker has made a
protected disclosure but, and this is the dividing line, the section does not apply where the
worker is an employee and the detriment in question amounts to a dismissal within the
meaning of Pt 10, and so we get a bright line divide. Either you are within the detriment
provisions or you are within the unfair dismissal provisions. You can’t be in relation to both in
relation to the same act, and you may present that complaint, of course, to an Employment
Tribunal.
Let’s look at the five parts to protection from detriment. Firstly, it applies to a new worker and
we’ll come back to that. In relation to any act, or any deliberate failure to act, who is subjected
to any detriment, we have the issue of “on the grounds” of, and then we have remedies. So,
who is a worker for these purposes? Well, firstly an employee as they always are. Secondly,
the classic employment definition of worker, the Employment Rights Act definition of worker, a
person who has entered into a personal work contract; but, thirdly, and importantly for these
purposes, we have the hugely extended definition of worker contained in s.43K, and it’s worth
looking at that in relation to any of the peripheral cases, because it is of staggering breadth.
Indeed, plainly, any individual auditor within a company will always have the protection of
whistleblowing legislation. Indeed, many individual solicitors within a firm acting for a client
will have protection viz a viz that client if they can get over the hurdles created by the issues of
privilege. And so this is a very broad provision.
Next, an act or deliberate failure to act—the employee must identify what the act or omission
is because, of course, without identifying what the act or omission is it’s impossible to enquire
into why the employer did that act or omission. It is pointed out in the EAT that the doing of
the act and suffering of the detriment are occasionally identical, but that’s certainly not always
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so and, indeed, it’s far from obvious that that will be so given the very wide definition of
detriment that we’ll come on to in a moment.
Again, remember that s.48 claims (as with all the other s.48 claims for detriment—and there
are, of course, a number of issues in relation to s.48) must be presented within three months
of the act or deliberate failure to act and there is the series of similar acts or failures provision
which is to be dealt with in the way that it is dealt with in the discrimination legislation as well,
and so it is suggested by us that there must be some relevant connection between the acts
and they must be part of a series or acts which are similar, and it is the acts that must be
connected rather than the detriment which must be connected, and that is an important
distinction, but often that will mean that an employee who has been suffering for a period in
relation to the consequences of his protected disclosures may well be able to bring a claim
that will encompass much of the problems he’s faced in the workplace for a fairly substantial
period prior to the claim eventually being submitted.
What is an act or deliberate failure to act? Well there’s disagreement as to whether
apparently disparate acts may be part of a series by reason of them all being on the ground of
protected disclosure, and we identify within this slide the fact that, of course, as you may
recollect from the case of Arthur, Mummery and Lord Justice Sedley were of the view that that
was the case. Against that, of course, Lord Justice Lloyd, in the same case, and Mr Justice
Burton in Yewdall. It’s probably a matter that’s going to be resolved at some point in some
future case, but it can be important in the context of a whistleblowing detriment claim.
What does subjected to a detriment mean though? Well, as with the discrimination statutes, it
means what a reasonable employee would consider to be a detriment, and that is a low
threshold, we’re told, that that means something more than de minimus but it can be as
minimal as inconvenience. The detriment itself must occur after the coming into force of the
statute provisions. Well, that’s probably no longer an issue for most people. It brings a long
stop date of ten years ago in relation to this, and it is rare that one would be able to say there
has been a continuing act for ten years as it would seem that the detriments have been
particularly serious.
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And then coming back to the Woodward v Abbey National point that I raised earlier, which is
that the detriment may occur after the termination of employment provided there is a sufficient
connection between the employment relationship and the detriment. This was an issue for a
while with cases such as Fedipe, but Woodward v Abbey National resolved it firmly in favour
of the employee/worker saying that it should be treated in the same way as in the
discrimination statutes.
The classic example of this will be in relation to the giving of references. Where an employer
gives a bad reference because somebody has made a disclosure at some stage during the
course of their employment, this may well give rise to a claim for detriment in the Employment
Tribunal and, of course, such a claim for detriment in the Tribunal may well be a much more
attractive claim for an employee than a Spring v Guardian style negligent reference claim in
the court where the costs consequences of that will be as they normally are for court
proceedings.
“On the grounds that” is the test in relation to detriment. So did the employer do the act or
omission “on the ground that” the worker made the protected disclosure? Well, it’s a
discriminisation style, a victimisation style approach. What are the mental processes,
conscious or unconscious, which caused the employer to so act? Plainly, “but for” causation
is not enough as with the discriminisation statutes, victimisation statutes. More so it cannot be
enough to say simply that the detriment is related to protected disclosure. What’s important to
note here is the test is identifiably different to the test in relation to unfair dismissal, which we’ll
come on to in a moment, and so one could quite clearly have the situation where if the
dismissal was seen as a detriment it would fall within the detriment provisions and give rise to
liability, but because it’s a dismissal it falls outside because the test in relation to dismissal is,
in some sense, a higher test for an employee to cross. Not a problem that I have seen arise
in practice, but plainly a real problem in some cases.
It’s for the employer to show the ground on which any act or deliberate failure to act was done,
and this is s.48(2), and as we’re told by the EAT in the case of Knight, this may mean little
more than an evidential issue in relation to the employer having to put up a basis for why it did
what it did, and inference is being drawn against it if it does not do so. On that, analysis may
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suggest a burden of proof very similar to that that we’ll see in a moment, set out by the Court
of Appeal in Kuzel v Roche.
What are the remedies for detrimental treatment? Well, under s.49 you can have a
declaration, again discrimination style remedy, and an award of compensation, and the
compensation shall be just and equitable having regard to the infringement and any loss
attributable to the act or failure to act. It should be noted that the claim for compensation
cannot be greater for a dismissal of a worker than it would have been had that worker been an
employee and bringing a claim for unfair dismissal rather than detriment under s.48/49. That
suggests strongly that there are no injury to feelings awards in relation to a dismissal of a
worker under the detriment provisions.
Let’s move on to unfair dismissal and the fourth part of this webinar. The structure of this
section is, first, we’ll consider the 103A issue. Next we’ll consider constructive dismissal and
how that fits in to that and, lastly, we’ll look at burden of proof issues.
So, s.103A. To recap, no qualifying period of employment needed. The qualifying period is
disapplied in 103A dismissals. There is no cap on compensation but it’s only for employees.
There is no extended concept of unfair dismissal for workers. They’re all hived off into the
detriment provisions.
So, s.103A(1): we look at whether the reason or principal reason for the dismissal is that the
employee made a protected disclosure. As I identified earlier, that would seem to be a
different test from the detriment claims. In particular, can an employer have a subconscious
reason for dismissal? Can one look to the subconscious reason or principal reason for
dismissal? Well, I suppose in principle one might be able to, but it’s going to be progressively
less likely for the employer to have a subconscious principal reason for dismissal where he
has a conscious alternative reason for dismissal. In those circumstances, one can see it may
well be very hard for the employee to make out that the dismissal was, in fact, by reason of
the disclosure.
Next, we can look at the issue in relation to constructive dismissal. There was some
confusion at the outset, running through to the decision of Melia v Magna Kansei in 2006, as
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to whether a constructive dismissal fell within the unfair dismissal provisions or within
detriment, but given that the definition of dismissal within the Employment Rights Act,
generally speaking, is consistent and, generally speaking, includes constructive dismissal the
Court of Appeal held that it fell outside the detriment scope by reason of the provision that we
looked at earlier.
So, what is the reason for dismissal in those circumstances? Well, it doesn’t often matter in
relation to unfair dismissal cases that are constructive dismissal. If the matter is a
constructive unfair dismissal, frankly, it’s a very rare Tribunal indeed that decides it’s a fair
dismissal in all the circumstances. But, plainly, in relation to a whistleblowing decision it’s
absolutely critical and, of course, a lot of these cases do arise out of constructive dismissals.
The employee decides that he’s had enough with his treatment as a result of the behaviour
and walks off. Well, plainly, the reason must encompass the employer’s conduct that
amounts to repudiation and one can extract that from the case of Melia v Magna Kansei.
Going beyond there, how far back does one go? What are the issues? Well it seems to me
that one is entitled to look at the entirety of the employer’s conduct that gives rise to the
eventual termination by the employee, and so with all of that put together, taking the entire
factual background, should be considered to be the reason for dismissal.
Moving on from there to the burden of proof. Well, finally, the issues were resolved by Kuzel v
Roche, which was reported last year in the industrial cases reports. In that case, there had
been almost every variety of argument put before the Appeal Tribunal and then Court of
Appeal, as to what the proper approach should be. There had been a careful judgment in the
EAT that was agreed with, in part, by the Court of Appeal and what did the Court of Appeal
hold is that there is a single fact finding exercise in relation to these cases. The Tribunal will
only ever find one reason, or principal reason, for dismissal and so it should only do that once.
The reason for dismissal is a set of facts which operated on the mind of the employer, all
classic stuff, and the employer has to establish its reason. But the employee can challenge
the reason with evidence and the Tribunal, at the end of the day, could accept either the
employer’s explanation or the employee’s explanation, or neither. It isn’t pushed into that
category of saying if the employer’s reason is not upheld then inevitably it was a
whistleblowing dismissal. As a result, much more is left in the hands of the Tribunal and much
less is left on the amble of burden of proof.
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The last thing, let’s look at remedy. The interim relief issue we mentioned before. Daniel and
I, discussing this earlier, identified the fact that we’d each done two interim relief applications
in our professional careers, which we thought was more than most people had, in fact, done
and, indeed, none of the four judges that we’d been before had ever done one before.
Interim relief is a difficult application to make. It’s difficult because of time. It has to be made
within seven days of the effective date of termination. That, therefore, requires in truth a
claimant who knows he’s about to be dismissed, knows why he’s about to be dismissed, is
able to start preparing the paperwork at very high speed. It requires lawyers who are able to
put forward the case in a way that is compelling, at high speed, with often minimal
instructions, but it should not be forgotten that it imposes a tremendous burden on a
respondent if an application is made. It comes on, generally speaking, very quickly, and if the
claimant succeeds on the interim relief application, which requires the Tribunal to find that it
appears to it that the claimant is unlikely to succeed on that ground, when it comes to a
Tribunal, then it gives the employee the fantastic advantage of being paid right the way
through to the final hearing with a Continuation of Employment Order made under s.129, and
it gives the employee that money regardless of what happens at the eventual hearing. So
even if he loses, he will keep the income in the interim period, and that may well be an
advantage sufficient to justify getting the move on.
Of course, there are the usual provisions in relation to re-instatement and re-engagement and
the all important subject of compensation, which will often involve the employee saying he’s
lost the chance to work in the industry again because everyone now knows he’s a
whistleblower and complainer and will be in trouble. That may be rather easier to make good,
of course, with the recent revelations in the construction industry about the blacklist operating
to keep troublemakers out of the construction industry. Whether the same applies in relation
to the financial services industry remains to be seen.
And so, there we have it. I think there’s, therefore, time for some questions.
Daniel Barnett (Chairman): Tom, thank you very much. In fact, Tom, while you were
talking I was googling “whistleblowing” and the top link that came up under the sponsored
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links (they’re the ones that people pay for), is the website whistleblower.co.uk which,
apparently, allows people to sell their stories confidentially to a journalist and get a fee of
between £100 and £50,000, depending on the story. This seems to be the absolute antithesis
of what the whistleblowing legislation is all about.
We’ve had about half a dozen questions come in so far. That’s not going to fill the half hour
we have available, so if you do have questions, please do send them in by clicking the
“Questions” tab to the right hand side of the video image. I’m going to start off with a question
from Agboako Malaki from MHL Support. Tom, he asks: What would happen if an
employer has a whistleblowing policy that requires employees to blow the whistle in certain
circumstances and an employee fails to blow the whistle on a colleague’s misconduct? Can
the employer take disciplinary action against the employee for failing to blow the whistle?
Answer from Thomas Croxford (Speaker): Well, in principle, yes. I suppose if you look
at in the context of the solicitor’s profession it may be even easier to see. Solicitors are
always under an obligation to report to the SRA any other solicitor they think has committed
an act of misconduct. That’s a specific obligation and if they fail to do so they may be
disciplined themselves, though I think it’s vanishingly rare for that to happen.
Again, if you impose an obligation upon your workforce to blow the whistle on misconduct or
improper behaviour within the organisation, that’s almost certainly an identifiable act of
misconduct. I mean, looked at in a wider sphere, the case of Fassihi which many are familiar
with was all about whether directors have an obligation to report misconduct by more junior or
other employees, or themselves as well, and I would have thought that, therefore, disciplining
for failure to whistleblow ought to be, in principle, fair.
Daniel Barnett (Chairman): Question from Gaynor Beckit from Hamers Solicitors.
Hello Gaynor. Gaynor asks: Can a claimant make an application for interim relief if he or she
is constructively dismissed?
Answer from Thomas Croxford (Speaker): In principle, yes. In principle, he’s been
dismissed, unfairly dismissed within the meaning of a statute and, therefore, again in principle,
he ought to be, or she, entitled to make an application for interim relief. It’s a slightly
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inconsistent application in the sense that you’ve walked off generally speaking because trust
and confidence has been destroyed and yet, at the same time, you’re applying to go back into
the workplace again so I think it’ll be an unusual application but, in principle, it’s an application
that is available, and if you’re successful it would keep the money flowing whilst your claim is
being brought so might, for that ground alone, be an application worth considering.
Daniel Barnett (Chairman): I’ve got a question here that I’m going to keep anonymous for
reasons that will be obvious when I ask it: What if the disclosure is about something personal
relating to a senior member of staff, for example if somebody discloses the managing director
is having an affair?
Answer from Thomas Croxford (Speaker): That’s a common form of disclosure. It’s
capable, again, of being a disclosure. I think the fact that the boss is having an affair will not
necessarily be an item of information that tends to show breach of a relevant obligation. He,
generally speaking, does not have a legal obligation to be faithful to his wife. If it’s an entirely
consensual affair within the workplace that’s not in breach of the employer’s policies as to
workplace sexual conduct, it may well not be in breach of those obligations. It may simply be
something embarrassing to the boss himself. Once it involves proper sexual misconduct
though, it’s a common form of disclosure and certainly one that I’ve seen in my practising
career as, I suspect you have Daniel.
Daniel Barnett (Chairman): And I suspect within a lot of cases there’d be a serious risk to
the adulterer’s health and safety as well.
Thomas Croxford (Speaker): Well, now that’s an argument that I think I’ll let you run
rather than me!
Daniel Barnett (Chairman): Question here from John Sloan: Can an employer take
action if they object to the manner of making a disclosure rather than the fact of making a
disclosure? By which I assume is meant if an employee walks into a boardroom and yells out,
“You’re breaching the following obligations”, and follows it with four letter words, could they be
dismissed for that?
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Answer from Thomas Croxford (Speaker): Well this is, I suppose, at the heart of the
Bolton School v Evans line of cases, Aspinall v Odong, and I think it’s, in principle, the manner
of making the disclosure is separate from the disclosure itself and, therefore, you may
discipline for the manner of making the disclosure rather than the disclosure. As the courts
pointed out, though, in cases such an assertion must be viewed with some innate scepticism,
because simply saying, “It wasn’t what you said but how you said it”, rarely carries that much
conviction, and it will depend very much on the facts. If, as you say, it is waltzing into the
company’s AGM in front of thousands of shareholders saying, “the boss is a crook”, one can
see that it might be rather more difficult for the employee than if, in fact, the employee is
making the disclosure in a slightly exaggerated manner, but not in itself an inappropriate
manner.
Daniel Barnett (Chairman): Thank you. Question, Tom, from Joanne Wiper from RBS
Mentor Services. Joanne says, Hi Daniel and Tom. Hi Joanne. To what extent does the
miscarriage of justice provision extend to employers’ disciplinary procedures? I think what
Joanne’s asking is, can an allegation of breach of natural justice fall within the miscarriage of
justice?
Answer from Thomas Croxford (Speaker): I find that quite difficult. Let’s assume that
the disciplinary procedure is non-contractual, because of course if it’s a contractual procedure
then it will be a legal obligation within s.(B), if it’s non-contractual there may be still be a
breach of trust and confidence if it is an unfair process and, therefore, again you may well be
able to say it’s a breach of legal obligation. I think that the miscarriage of justice concept
almost certainly relates to a more formal judicial process in relation to probably criminal,
perhaps civil proceedings where the judicial system is being subverted by the actions of the
person against whom the whistle is being blown but, so far as I am aware, it’s certainly not a
decided point, and one might run it but I think there are better ways to run it within the
scheme, and I suspect that is the way that one would ordinarily run that point.
Daniel Barnett (Chairman): Nice easy question for you: Can you recommend a good
book on whistleblowing?
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Answer from Thomas Croxford (Speaker): I suspect that’s a Littleton Chambers
request, because they have the best known book on whistleblowing. There are, as is the way
of these things, a number of books. The problem with all of them is that this is an area of law
that tends to move relatively quickly and in relatively large jumps, and if you’re missing out on
one significant case that can mean a major, major problem, and one need only look at the
references within this tool to see that the bulk of the important cases have come in the last 18
months to two years—a series of Court of Appeal decisions that have transformed the
landscape of whistleblowing in a very real sense.
Daniel Barnett (Chairman): Question from Shepherd & Wedderburn. Hello Scotland!
Have you got a view, Tom, on whether a disclosure to a legal adviser [it’s the second one
down]… a disclosure to a legal adviser as defined within the Act only applies where the
disclosure is made to a solicitor who holds a practising certificate, or does the phrase
“disclosure to a legal adviser” carry a wider category of people such as HR consultants?
Answer from Thomas Croxford (Speaker): I have to say I have never looked at or
thought of that issue. I’m confident that legal adviser isn’t a defined term within the Act. I
think, ordinarily legal adviser would mean somebody who has a legal qualification and so one
would anticipate it being a solicitor. It might be of importance in some cases. Of course,
generally speaking, you may well fall within the other provisions of disclosures, even if you
don’t fall within the legal adviser provision, if you disclose, say, to HR adviser because,
frequently, that will be a third party disclosure where you fall within the issue of whether it’s an
appropriate and reasonable person to disclose to if you have substantial belief in truth, but
yes, I accept that a legal adviser is neater because it doesn’t require good faith and doesn’t
require substantial belief in truth. One could run it. Again, I don’t think it’s decided. My guess
is it would be decided that it required someone to be a solicitor or working for a solicitor’s firm.
Daniel Barnett (Chairman): Question here, picking up on the first question we had
actually from Agboako Malaki: Do whistleblowing policies ever add anything?
Answer from Thomas Croxford (Speaker): Whistleblowing policies add in, I suppose,
several ways. One is that you have an identified policy showing that you take whistleblowing
seriously. That in—and of—itself may assist in showing that you’re not the sort of employer
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who victimises whistleblowers. Secondly, it may identify the appropriate way to blow the
whistle, if you wish to blow the whistle, and that, again, may assist an employer in showing
that blowing the whistle in any other way is likely to be a bad faith disclosure because the
employee should know how to do it properly, and that will be particularly important in relation
to third party disclosures by the whistleblower.
Next, I don’t think I’ve raised it yet, one can identify third parties to whom one may blow the
whistle that will fall within the employers and others provision 43(C), the standard provision in
relation to whistleblowing, and that, in some organisations, may be helpful, so I can see the
thrust of the question, and I can perhaps sympathise with the thrust, but I think the
whistleblowing policy is often actually a very sensible idea and, of course, some regulators
would require that of any proper employer. I think the financial services industry is of a view
that, generally speaking, to comply with FSA requirements they probably ought to have a
whistleblowing policy set out in writing, so you will more and more see these policies.
Daniel Barnett (Chairman): Question from Morrish & Co. Morrish & Co say that they’ve
had some success in claims following letters before action in personal injury cases. Do you
have any thoughts as to whether they’re likely to be classed as a protected disclosure? I think
they’re asking if, on behalf of a claimant they write a letter saying Fred Bloggs has suffered an
injury at work, would that count as a qualifying disclosure?
Answer from Thomas Croxford (Speaker): In principle, yes. In principle, if the
individual was still employed or still within the relationship that gives rise to the personal injury,
there’s no reason why that should not amount to protected disclosure and, therefore,
victimising on the basis of that will often give rise to a good claim, and dismissal on the
grounds of that may well give rise to a claim.
Daniel Barnett (Chairman): Second question from Joanne Wiper from RBS Mentor
Services. Where an employee alleges bullying which falls short of harassment contrary to the
Protection from Harassment Act, is that sufficient to constitute a disclosure of breach of legal
obligation?
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Answer from Thomas Croxford (Speaker): Generally, yes. Generally, bullying will be a
breach of trust and confidence. It may well be an act of harassment contrary to one of the
Discrimination Acts. It is unlikely to be something that carries no legal consequences and
relates to no legal obligation so, generally, complaining of bullying will be a protected
disclosure but, back to the usual point, if it’s in relation to being bullied oneself—my boss is
bullying me—it may be harder to make that as being an allegation in good faith, and it may
also be harder to show that any later treatment is by reason of the disclosure of that rather
than the underlying propensity of the manager to victimise this person, as demonstrated by
the fact that they were bullied before they make the disclosure rather than just afterwards.
Daniel Barnett (Chairman): Question from Alice Gaynor of FSI. Alice, you asked
regarding the issue of whether a concern raised amounts to a qualifying disclosure or whether
it’s simply providing information: Is it a protected disclosure where the recipient is aware of
the information in question and the claimant, who has fiduciary duties himself, is simply stating
his concern about irregularities?
Answer from Thomas Croxford (Speaker): In general, yes, subject to the Everett v
Murrell point which is, to recap, raising a matter which the discloser already knows the
recipient knows about, then it may not be a protected disclosure but, in principle, you are
drawing that information to the attention of the managing director and that, under 43(L)(3) is
said to be capable of being protected disclosure so, yes, Alice, I do think that in general that
will be a protected disclosure.
Daniel Barnett (Chairman): Katy Whittaker, I’m not sure if this is tongue in cheek or not!
Katy asks if being sent to Coventry amounts to a detriment?
Answer from Thomas Croxford (Speaker): Yes it does, probably in both senses, but
certainly in the colloquial sense of (those who are in Coventry I apologise!) …in the sense of
being excluded, because that would certainly be a detriment within the context of the
Discrimination Acts, there’s no doubt about that at all. Being marginalised or excluded by your
fellow workers is always capable of being a detriment, and there’s no reason for this to be
treated differently.
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Daniel Barnett (Chairman): Another question from Shepherd & Wedderburn. It’s about
the burden of proof. In terms of the burden of proof under the unfair dismissal of
whistleblowing regime, how does the burden of proof test apply where an employee lacks one
year’s service?
Answer from Thomas Croxford (Speaker): Well, a very sensible question because, of
course, in those circumstances the employee will not be bringing alternative claims for
ordinary unfair and automatically unfair dismissal and, thus, in that sense there would be no
true need for the enquiry set out in Kuzel v Roche, but I think in my view the same process will
be gone through. There is one task of identifying what the reason is and, whilst there are
evidential burdens on both sides, practical burdens to put before the Tribunal, what each side
asserts is the reason for dismissal.
At the end of the day the Tribunal can agree with one, the other or neither and decide that
some other reason entirely was in play. They, generally speaking, in those cases where the
employee does not have one year’s service, the employer is rather more willing to set out that
they behaved unreasonably, unfairly but not unlawfully in deciding to dismiss, and so often in
those cases you get a rather more frank response from employers than one might otherwise
expect.
Daniel Barnett (Chairman): Question here… we’re down to the last couple of questions
by the way, so please keep them coming in or, perhaps, much to your delight we’ll be finishing
about ten minutes early. Tom, is it right that you can get compensation for injury to feelings if
you’ve been subjected to a detriment but not if you’ve been dismissed?
Answer from Thomas Croxford (Speaker): It’s correct that you can’t get injury to
feelings damages for being dismissed; you’re subject to the normal unfair dismissal regime. It
is the general view that you’re entitled to some injury to feelings if you are bringing a detriment
claim. There is, I mentioned briefly… it’s pretty clear that if, in fact, the detriment you are
complaining of is as a worker having your contract terminated, you’re not able to be put in a
better position through being a worker than you would be if you were an employee, so in those
cases you’re not entitled to injury to feelings because otherwise you would be in a better
position by not being an employee.
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Daniel Barnett (Chairman): And I’m just going to ask you now, Tom, for your view before
we finish off. What do you think the next big unresolved whistleblowing issue is?
Answer from Thomas Croxford (Speaker): What is the next big unresolved
whistleblowing issue? I think the next big unresolved whistleblowing issue is whether one of
the big financial services firms is actually willing to fight one!
Daniel Barnett (Chairman): Well, on that note, I’m going to call it a day. Thank you very
much, Tom, for—forgive me, just let me finish this off—for spending an hour and a half talking
to us about whistleblowing. If anybody has any more questions for Tom I’m sure he would be
delighted to answer them on a professional basis through the clerks at Blackstone Chambers.
The next couple of webinars that we have are on 20th April where Andrew Hogarth and Daniel
Tobin are talking about PI claims, bringing in defending highway claims. Then, on 11th May,
Tom Linden and James Laddie, both from Matrix Chambers, are talking about recent
developments in age discrimination. On 20th July, John Bowers from Littleton Chambers is
talking about appeals, how you run an appeal to the Employment Appeal Tribunal and tactical
considerations to think about, and sandwiched neatly between those two, on 15th June we
have another PI webinar on product liability claims with Charles Cory-Wright QC and Bernard
Doherty.
Don’t forget that in the next couple of weeks we’ll be sending you a transcript of this webinar.
You’ll be able to view a recording of this webinar from tomorrow, and you’ll be sent the link
very shortly, and to get your CPD hours please don’t forget to answer the multiple-choice
questions. You can come back and answer them up to five times and you have three months
in which to do it. Score six out of ten and you’ll be immediately emailed your CPD certificate.
Thank you very much for taking the time to watch this webinar this afternoon. Goodbye.
Please do not distribute this transcript outside your office (transcript copy no.712).
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