Are we seeing greater protection for whistleblowers?

Education England recently introduced whistleblowing protection for junior doctors. This forms part of a growing trend towards increased protection for those who make disclosures, argues Sean Dempsey from Lewis Silkin.

A whistleblowing claim can be expensive to defend, and even more expensive to lose. A report by the charity Public Concern at Work records a payout of £3.4 million made to a director of a medical marketing company for a whistleblowing claim.

There has also been a general trend towards strengthening the protection of whistleblowers in court and tribunal decisions. Against this background, junior doctors have now been given enhanced protection in whistleblowing situations.

Whistleblowing is made up of two elements: a worker disclosing a certain type of wrongdoing (such as a criminal offence, a health and safety violation, the causing of environmental damage, a miscarriage of justice, or breach of the law), and doing so in the public interest. These are known as "protected disclosures".

Whistleblowing in the public interest

The requirement for protected disclosures to be in the public interest was introduced in 2013.

Previously, disclosures only needed to report one of the specified types of wrongdoing, and workers could be making the disclosures entirely in their own interest.

The public interest requirement was introduced primarily to stop workers from being protected by whistleblowing laws when making complaints about their own contracts of employment.

This change was expected to reduce the number of whistleblowing claims, but in practice the courts have interpreted the concept of the "public interest" very widely.

In one case (Chesterton Global Ltd v Nurmohamed), a manager's complaint about his commission, which also affected 100 other senior managers, was held by the Employment Appeal Tribunal (EAT) to be in the public interest.

This was followed by another case (Underwood v Wincanton plc) where the EAT ruled that a disclosure concerning the unfair allocation of overtime to only four HGV drivers may have been made in the public interest.

The Chesterton case is due to be heard by the Court of Appeal in October 2016, and they might rein in the very wide approach taken by the EAT.

In the meantime, employers need to be aware that disclosures about an individual's own working conditions may still be in the public interest if the issue also affects some others in the workforce.

Employer's awareness of the whistleblowing

Another recent case has further strengthened worker protection. In Royal Mail Group Limited v Jhuti, Ms Jhuti was dismissed after making a number of protected disclosures. However, the person who dismissed her did not actually know about the whistleblowing. Despite this lack of knowledge, the EAT found that she had been automatically unfairly dismissed for making protected disclosures.

This was because the manager who knew about the disclosures had deliberately manipulated the person who decided to dismiss Ms Jhuti, so causing her to be dismissed.

The case clarifies that a dismissal can be unfair if it is caused by the fact an employee has made a protected disclosure, even where the dismissing manager is not aware of those facts.

This is a wider approach than that which applies in discrimination law, where the alleged discriminator has to be directly aware of an employee's complaints in order to be liable for victimisation.

Extending protection for junior doctors

Recent developments in the protection of junior doctors have formed part of this trend of increased whistleblower protection.

Junior doctors, and others working in the NHS, are providing a public service and so in a position where disclosures about working conditions or other workplace matters are very likely to be in the public interest.

However, the recent case of Day v Lewisham and Greenwich NHS Trust revealed a potential gap in protection.

Dr Day was working overnight in intensive care when two locum doctors failed to turn up to work. He raised concerns to his managers at Queen Elizabeth Hospital and at a training meeting with Health Education England (HEE), the body responsible for education, training and workforce development in the health sector.

HEE arrange training placements and contribute towards salaries, but do not enter into a contract of employment with doctors. All contractual terms and conditions are set by individual NHS Trusts.

Dr Day had a training contract with HEE, but it was agreed that this was not a contract of employment.

Dr Day complained that, since he had raised his concerns, he was only able to find work as a locum doctor. He brought a claim against the HEE complaining that he had suffered a detriment as a result of making protected disclosures.

However, whistleblowing claims can only be made against a worker's employer. The employment tribunal struck out Dr Day's claim against the HEE on the grounds that they were not his employer, and the EAT agreed.

He could bring a claim against the Trust which employed him, but not against the HEE which made decisions about his training.

This decision left Dr Day without whistleblowing protection against the HEE, which led to the British Medical Association campaigning to have junior doctors' contracts changed. They wanted the HEE to provide whistleblowing protection for junior doctors.

HEE have now agreed to place provisions in contracts allowing junior doctors a route of direct redress against HEE through the courts in whistleblowing situations. It is intended that the provisions will be backdated to the start date of junior doctors' contracts.

Defending whistleblowing claims

Although the law is currently making it easier for whistleblowing claims to be brought, employers do have a few tricks up their sleeves.

In order for a whistleblowing claim to be successful, the worker needs to show that any detriment they suffered was "on the ground" of the protected disclosure, or the principal reason for their dismissal was the fact that they had made a protected disclosure.

If the employer can prove that any detrimental treatment was not on the ground that the worker has made a protected disclosure, or the worker was dismissed for a reason other than the protected disclosure, the worker will be unsuccessful in their claim.

The requirement for workers to show a link between the disclosure and the detriment or dismissal can be a tough hurdle to jump. This is shown by the fact that, between 2011 and 2013, only 12% of whistleblowing cases were successful.

When defending a case brought by a whistleblowing worker, employers should ensure they have the evidence to show that the reason for any treatment was not the fact that the worker had made any protected disclosures.

It very is important to have a paper trail showing the true reason for any treatment. A clear whistleblowing policy will also help employers and workers alike to manage such situations.