In June 2013 the law on whistleblowing changed to ensure that any qualifying disclosures must be in the public interest for the worker to receive the protection enshrined in whistleblowing law.
A worker must not be subjected to a detriment by his employer because of a protected disclosure which he has made. Additionally, the protected disclosure needs to, in the reasonable belief of the worker, show one of six specified types of wrongdoing and must now be in the public interest, although, the worker no longer needs to be making it in good faith for it to qualify as protected.
However, this still gives rise to many questions, for example does it matter whether the perpetrator of the detriment had knowledge of the protected disclosure and can a series of separate disclosures amount to one qualifying disclosure? A couple of recent cases have clarified these issues to give employers and potential whistleblowers greater certainty.
Earlier case law had already established that separate correspondence could amount to one qualifying disclosure (Goode v Marks and Spencer PLC) but the Employment Appeal Tribunal (EAT) has now gone one step further in confirming that this can be the case even if the correspondence was sent to different individuals. Mr Shaw sent three separate emails regarding his concerns about his staff driving in snowy and dangerous conditions.
The first two emails were sent to the company's Health and Safety Manager and the third to its HR department. Mr Shaw was subsequently dismissed and claimed this was due to the disclosures he had made.
A preliminary point was raised as to whether the emails could amount to a qualifying disclosure as they were separate pieces of correspondence sent to different individuals. The EAT upheld the decision of the Employment Tribunal stating that even though the emails would not individually constitute qualifying disclosures, they could, taken as a whole, amount to a qualifying disclosure. Crucially, the third email referred to the earlier correspondence and so the HR recipient should have been aware that previous concerns had been raised. It was suggested that the decision may have been different if the recipient had been unaware of the earlier emails sent.
Another helpful case has recently confirmed what the person responsible for the detriment must know about the disclosure(s). Mr Anastasiou, an employee of Western Union Payment Services, mentioned during a meeting that he had concerns about whether the company would reach certain targets and, therefore, about whether it was misleading shareholders. Soon after raising these concerns he was dismissed by his line manager for a fraudulent expenses claim.
Mr Anastasiou claimed that he had been dismissed and suffered other detriments as a result of the protected disclosures he had made. The Employment Tribunal (ET) found in his favour with regard to the detriment element (although his claim for automatically unfair dismissal failed) and so on appeal by the Respondent the EAT only considered this aspect of the claim. In particular it looked at the knowledge of the disclosure by the person responsible for the detriment, and whether this knowledge materially influenced the detrimental decision or action in question. The test of 'materially influenced' only applies to detriment in whistleblowing cases. For his claim of automatically unfair dismissal, Mr Anastasiou would have had to show that the protected disclosures were the 'reason or principal reason' for his dismissal (which he could not).
Western Union Payment Services claimed the line manager who subjected Mr Anastasiou to detrimental treatment was unaware of the claims raised by him and so could not have been materially influenced by the disclosure when meting out the treatment in question.
The EAT confirmed that Mr Anastasiou had made protected disclosures as he had disclosed information which was a potential breach of a legal obligation. However, the line manager who was responsible for the detriment had no knowledge of these protected disclosures and so the employer's appeal against the finding of subjecting Mr Anastasiou to a detriment was allowed.
Both of the cases above highlight the importance of communication between managers and the HR department, and employers ensuring that knowledge their staff may have is appropriately shared within the parameters of any whistleblowing policy. Training will be vital to ensure managers do not dismiss or subject a worker to a detriment where that worker has given them information that may amount to a 'protected disclosure'.
Norbook Laboratories (GB) Ltd v Shaw
Anastasiou v Western Union Payment Services