Whistleblowers at work 2: the statutory context

Mr Callanan consequently wrote a confidential letter expressing his concerns to nursing managers. In the course of the ensuing inquiry, managers were warned by other members of staff that, if Mr Callanan or Mr X appeared on the wards, they would walk out. Mr Callanan and Mr X were thereafter ordered to report to the nursing school. The management report into Mr Callanan's allegations concluded that there was no evidence to substantiate his complaints, although it accepted that they were made "in good faith and without any malicious intent whatsoever". He was told that if he accepted these findings he would be able to return to the ward, but he refused. By this time he had been expelled by his trade union, which had broadly supported the staff threatening to walk out. And the day before he gave notice of his resignation, his wife received an anonymous telephone call in which the caller said that she should tell her husband to "shut up".

Applying the Western Excavating test, the industrial tribunal held that Mr Callanan had been constructively dismissed: "There was here a significant breach going to the root of the contract of employment. The breach was constituted by the order to the applicant to withdraw from the ward and report to the school." This was a serious disruption of the training to which Mr Callanan was contractually entitled. That fact had indeed been recognised at various points by managers, and the tribunal itself found that the time that Mr Callanan spent in the school during the relevant period (which lasted almost two months) "was simply being wasted". Since the employer could show no valid reason for the dismissal, the tribunal concluded that Mr Callanan had also been unfairly dismissed.

For example, constructive criticism of an employee's work performance or ability is normally an acceptable part of working life. In a number of circumstances, however, criticism may go beyond the boundaries of acceptability (see Courtaulds Northern Textiles Ltd v Andrew). This may particularly be the case where criticism is unjustified, or is not a true reflection of the employer's view of an employee's competence. And if adverse comment is made (especially over a period of time) in the presence of a supervisory or managerial employee's subordinates, in such a way as to undermine that employee's authority, the employer's conduct (or the conduct of those for whom it is vicariously responsible) may amount to a repudiatory breach of trust and confidence (Wetherall (Bond St W1) Ltd v Lynn). Related to this is the situation where the employer gives unjustified warnings to an employee about his or her conduct or competence, particularly where those warnings are "given not really with a view to improving [employee] conduct or performance, but with a view to disheartening [him or her] and driving [him or her] out" (Walker v Josiah Wedgwood & Sons Ltd).

In Smith v Youth Hostel Association (England and Wales), for example, Mr Smith was employed by the YHA as a "storeman/packer", and latterly as stock room supervisor, at a warehouse which supplied its retail outlets. Over a period of several months he noticed considerable unexplained losses of stock, which he consistently reported to management. He was initially told by management that he was "exaggerating" the losses, and, indeed, was at one point told by his immediate superior to say that stock was lost in the post and that he, Mr Smith, had checked it inaccurately. Mr Smith's health began to suffer as a result of anxiety about increasing stock losses and management's failure to take notice of his reports. The "final" straw which caused him to resign came when he discovered that the YHA had advertised for a stock room manager without informing him, and at about the same time he received a final written warning in respect of a brief period of certified time off sick.

An industrial tribunal held that in these circumstances the YHA was in fundamental breach of Mr Smith's contract "by making it impossible for [him] to carry out his job of stockroom supervisor". The employer's attitude was also such as to be a serious breach of the implied duty of trust and confidence. The tribunal found that Mr Smith's immediate superior (who was subsequently convicted for theft) had actively tried to prevent losses from being reported, and he had not received any support or encouragement from higher management in his efforts to deal with the losses (indeed, in a note in his personnel file a senior manager had observed that he was a "good stockman", but that he had a reputation for "crying wolf" and continually raising largely unsubstantiated alarms on the security system). He was, the tribunal concluded, "a satisfactory employee in relation to both conduct and capability", and his constructive dismissal was consequently unfair.

This will be particularly true in relation to complaints about health and safety at work. In British Aircraft Corporation Ltd v Austin, the EAT held that the employer's general implied common law duty of reasonable care for the health and safety of its employee is an essential term of the contract of employment. It further concluded that, as part and parcel of that general obligation, employers "are also under an obligation to act reasonably in dealing with matters of safety, or complaints of lack of safety, which are drawn to their attention by their employees." Unless such complaints are obviously "not bona fide or [are] frivolous", employers should investigate them promptly and sensibly.

In Pagano v HGS, an employee had throughout his employment raised with his employer concerns about the safety of vans which he was required to drive. When he was once again instructed to drive a van with brakes which he discovered to be in a dangerous condition, he decided that it was not worth returning to the depot because his many previous complaints had not received proper consideration. Instead, he approached one of his trade union shop stewards, who advised him to take the van to the police for inspection. They in turn advised him to take the van to a local Department of the Environment testing station. The van (together with another van driven there by the shop steward) were tested, and prohibition orders (preventing their use) were issued. An industrial tribunal found that in these circumstances the employee was entitled to treat himself as constructively, and since the employer had failed to demonstrate a valid reason for his dismissal, unfairly, dismissed.

In WA Goold (Pearmak) Ltd v McConnell and another, the EAT referred to the requirement that the statement of initial employment particulars issued under s.1 of the ERA must contain a note specifying, by description or otherwise, "a person to whom the employee can apply for the purpose of seeking redress of any grievance relating to his employment, and the manner in which any such application should be made" (see s.3(1)(b)(ii)). It was clear, therefore, "that Parliament considered that good industrial relations requires employers to provide their employees with a method of dealing with grievances in a proper and timeous fashion ... That being so, the industrial tribunal was entitled ... to conclude that there was an implied term in the contract of employment that the employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have."

The EAT went on to observe that "the right to obtain redress against a grievance is fundamental for very obvious reasons. The working environment may well lead to employees experiencing difficulties, whether because of the physical conditions under which they are required to work, or because of a breakdown in human relationships, which can readily occur when people of different backgrounds and sensitivities are require to work together, often under pressure ... There may well be difficulties arising out of the way that authority and control is exercised - sometimes by people who themselves have insufficient experience and training to exercise such power wisely."

It seems that attempts to restrain a public interest disclosure could in themselves be regarded as a significant breach of contract, particularly if the employee has sought to use all avenues to raise the matter internally without success. Alternatively, such action by the employer could be characterised as a serious breach of the mutual duty of trust and confidence or, perhaps, a breach based on the employer issuing unlawful and/or unreasonable orders.

Reason for dismissal

Once the employee establishes that he or she has been dismissed within the meaning of s.95(1) of the ERA, the burden moves to the employer to show the reason (or principal reason) for dismissal and that this was a potentially fair reason (that is, capability or qualifications, conduct, redundancy, statutory restriction, or "some other substantial reason" of a kind such as to justify the dismissal of an employee holding the position which the employee held ("SOSR") - see s.98(1)(b)-(2)). A reason for dismissal is a set of facts known to the employer or beliefs held by it which cause it to dismiss an employee (Abernethy v Mott, Hay and Anderson).

In the case of the express dismissal of an employee because of an alleged disclosure of confidential information to, or communication with, a third party, this will not generally be a difficult burden for the employer to shift. The honestly held suspicion of breach of confidentiality will normally permit the employer to rely on the employee's alleged "misconduct". For example, in Sanderson v Mirror Group Newspapers Ltd, the employer argued that the contents of a letter sent by a disaffected employee to a rival publication constituted gross misconduct. It was a public attack contrived to damage the employer, "which undermined the mutual trust and confidence which must exist between a journalist and his paper". The EAT upheld the industrial tribunal's conclusion that dismissal on this basis was fair in all the circumstances.

Failing this, the employer may well be able to argue that there is an SOSR reason for dismissal. Thus, in Byford v Film Finances Ltd, the EAT stated that "it is indeed difficult to think of [an SOSR] reason more potent than the discovery that a trusted employee has behind the back of the board of directors managing the affairs of the company been divulging confidential information to somebody not on the board."

It would be unusual at this stage for a tribunal to consider the employee's motive for disclosure, or the fact that he or she might claim that a disclosure was in the public interest. Indeed, in most cases tribunals will not even scrutinise the employer's claim that the information disclosed was in reality confidential. What is crucial is the facts known to, or beliefs honestly held by, the employer in relation to the disclosure at the time it took the decision to dismiss.

In relation to constructive dismissals, the employer is effectively required "to show the reasons for [its] conduct which entitled the employee to terminate the contract thereby giving rise to a deemed dismissal by the employer" (Delabole Slate Ltd v Berriman). This can often be difficult, not least because the employers main argument in such cases is likely to be that there has been no dismissal. The employer must therefore consider stating in the alternative what its reason(s) were, or at least leading evidence before the tribunal from which its reason can clearly be discerned. In virtually all of the constructive dismissal cases considered above, the employer failed at this stage.

Pressure to be disregarded

The Callanan decision also illustrates the principle, now contained in s.107 of the ERA, that in determining the reason, or principal reason, for dismissal (and, indeed, the subsequent question of the reasonableness or fairness of a dismissal), no account must be taken "of any pressure which by calling, organising, procuring or financing a strike or other industrial action, or threatening to do so, was exercised on the employer to dismiss the employee; and the question shall be determined as if no such pressure had been exercised."

In Mr Callanan's case, said the industrial tribunal, pressure was exercised on the employer by the threat of industrial action (that is, the threats to walk out and refusal to work with Mr Callanan and Mr X). The test to be applied was, the tribunal continued, whether the pressure exerted on the employer was such that it would be likely to result in the dismissal of those employees in respect of whom the pressure was being brought. This included pressure to dismiss constructively, and it could be foreseen that the pressure on the employer here would be likely to result in the constructive dismissal of Mr Callanan. Disregarding that pressure, the tribunal held that there was no possible reason for his dismissal.

Written reasons for dismissal

In order to get an early indication of the employer's likely arguments and reason(s) for dismissal, an employee who has been dismissed (with or without notice), or is under notice of dismissal, or whose fixed-term contract has expired without renewal, has an independent right, on request, to be provided by his or her employer with "a written statement the reasons" for his or her dismissal (s.92(1) ERA - note that this right does not apply in cases of constructive dismissal). He or she must have been employed for two years or more, and should be furnished with the written statement within 14 days of his or her request. The statement under s.92 is admissible in evidence in any proceedings (including unfair dismissal proceedings - s.92(5)).

An employee may complain to a tribunal that the employer has unreasonably refused to provide a written statement, or that the particulars given in purported compliance are inadequate or untrue. This, again, will not necessarily aid the employee who claims either that information disclosed was not confidential, or that disclosure was or would have been in the public interest. In Harvard Securities plc v Younghusband, for example, staff were instructed not to pass on to third parties information about the fact that one of the company's senior employees had been arrested and charged with various offences of dishonesty, including theft of clients' property. Mr Younghusband subsequently had a telephone conversation with a person who was believed to be an employee of a rival firm, during the course of which he discussed the arrest. The company was of the opinion that that conversation had led to the information being disclosed (by the immediate recipient) to the press.

In response to Mr Younghusband's request for written reason for his consequent dismissal, the company stated that he had improperly divulged to a third party confidential information relating to the business of the company. An industrial tribunal held that the information allegedly passed on by Mr Younghusband, or a substantial part of it, was in the public domain and was not therefore subject to any contractual duty of confidentiality. The company's written reason was consequently "untrue".

Allowing an appeal against that decision, however, the EAT concluded that the purpose of s.92 is to compel the employer "to state truthfully the reason that [it] was relying upon in dismissing the employee". There is no need at this stage to embark upon a consideration of whether the reason is intrinsically good or bad, or of the justification of the dismissal. Truth in this context points to the veracity of what the employer puts forward as the reason for dismissal. In the present case, the tribunal had found specifically that Mr Younghusband had been dismissed on grounds of breach of confidentiality, and whether or not the information allegedly disclosed was in reality confidential was irrelevant at this point, said the EAT.

Reasonableness

Provided the employer is able to show a potentially valid reason for dismissal, "the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) - (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and, (b) shall be determined in accordance with equity and the substantial merits of the case" (s.98(4) of the ERA).

In general terms, this requires tribunals to consider whether the dismissal fell within the band of reasonable responses which a reasonable employer might have adopted in the circumstances. If the employer alleges that the employee is guilty of misconduct, for example, in disclosing confidential information, it must have reasonable grounds to sustain its belief that the employee is guilty of the alleged misconduct, and that belief must be based on reasonable investigation (British Home Stores Ltd v Burchell). Other than in very exceptional cases, the employer should adopt an appropriate procedure once it has formulated that reasonable belief (see Polkey v AE Dayton Services Ltd). If the employer has contractual or extra-contractual procedures in place for dealing with employees who raise concerns either internally and/or externally, these should obviously be adhered to (see examples in part one ).

The nature of the reasonable grounds required is illustrated in Durham County Magistrates' Court Committee v Telford. There the police informed the employer (the magistrates' court) that one of its employees was suspected of passing on confidential information about search warrants to known criminals. The employee was interviewed, and it became clear that she had at least discussed warrants with one criminal, but claimed that she had done so only after the warrants had been executed. The EAT overturned the industrial tribunal's decision that her consequent dismissal was unfair. The employer had reasonable grounds for believing that the employee intended to breach her duty of confidence and, short of interviewing the criminal in question, no further investigation was possible: "It was plainly within the band of reasonable responses to dismiss in those circumstances."

Relevance of the public interest?

It should nevertheless be noted that the fairness of a dismissal under the s.98(4) test is not determined by whether or not the employee was in fact in breach of contract in disclosing information. This is because the reasonableness of a dismissal must be judged in the light of the employer's knowledge (both actual knowledge and matters of which it ought reasonably to have been aware) and actions at the time of dismissal.

In consequence, tribunals have not, in the relatively small number of cases where the issue has arisen, been particularly receptive to employees' arguments that disclosures of allegedly confidential information may have been justified in the public interest. In Thornley v Aircraft Research Association Ltd, for example, an aeronautical engineer prepared a report documenting his concern that a fighter aircraft on which he was working had a "fundamental weakness". He showed this report to his immediate superior, but also sent it to a potential buyer of the product. About a year later, he was transferred to another project, although he did not begin to question why this was until a further year had passed. In his view, he obtained no satisfactory explanation of his transfer, and ultimately sent a letter disclosing his concerns to the Guardian newspaper.

Upholding an industrial tribunal's decision that his subsequent dismissal was fair, the EAT was clearly unsympathetic to public interest arguments: "What Mr Thornley finds difficult to understand is that, leaving aside all questions of the Official Secrets Acts, government security, the good of the public, and the man prepared to martyr himself for the public good, this is a perfectly simple, straightforward case of a man bound by contract to behave towards his employer with the same degree of confidence and trust as he is entitled to expect of them."

A major problem in Thornley appeared to be the employee's unwillingness to detail the underlying reasons for his grievance over his transfer within internal company procedures, together with the delay in taking action in the first place. The EAT again emphasised that the fairness of a dismissal must be judged in the light of the employer's knowledge at the time of dismissal. It follows that, in most circumstances, an employee should seek to raise concerns internally in order to ensure that the employer is apprised of all the relevant facts, including any possible public interest in disclosure, before going outside the undertaking. It should also be remembered that some (often senior) employees may be under an implied contractual duty to report the wrongdoing of colleagues to the employer (see part one ).

Reluctance to investigate

There has thus been a marked reluctance on the part of tribunals to embark on any investigation of the veracity of concerns which may be expressed by the employee, or of the employee's motives for disclosing information.

In Byford, Mrs Byford (an "administration manager") was passing confidential information about her employer to the opposing side (representing minority shareholders) in a shareholders' dispute. She "threw her lot" in with the minority out of personal loyalty to a director who was ousted by the majority, and because of her belief that the tactics employed by the majority involved illegal, fraudulent and/or improper conduct on the part of the company's directors. The EAT upheld a tribunal's decision that she had not been unfairly dismissed when the company began strongly to suspect that she was the source of the leaks, and was faced with her point blank refusal to cooperate in tracing the source and her failure to explain her part in events. Mrs Byford was an important and hitherto trusted employee who had "entirely betrayed the trust which was reposed in her". The crucial question for the tribunal was whether the employer could properly and fairly have reached the decision to dismiss.

In reaching that conclusion, the EAT said that neither it nor the tribunal were in a position (and had not been invited) "to determine the rights and wrongs" of the complex dispute between the majority and minority shareholders. This was the subject of extensive litigation in the High Court, and the allegations of impropriety which motivated Mrs Byford were "hotly contested" by the company's board of directors. Cases on public interest disclosures, such as Initial Services (above) and Gartside v Outram (see Whistleblowers at work 1: contract, confidentiality and the public interest), were not relevant in the present case. If the EAT had to express a view, it said that it "would take a great deal of persuading that there were not a number of courses which Mrs Byford could have embarked upon which did not involve the out-and-out deception of her employers." By implication, the EAT indicated that had she informed the Department of Trade and Industry about her suspicions, or written a memorandum outlining her concerns and sent copies to both the company's directors and its auditors, the outcome might have been different.

Codes and procedures

In part one, we observed that certain groups of employees are subject to duties imposed by professional codes of conduct. For example, the code issued by the United Kingdom Central Council for Nursing, Midwifery and Health Visiting provides that the employees covered should protect all confidential patient or client information, and make disclosures only with consent, where required by court order, "or where you can justify disclosure in the public interest". The Code further imposes positive duties to "report to an appropriate person or authority" - having regard to the physical, psychological and social effects on patients and clients - any circumstances in the environment of care which could jeopardise standards of practice; and any circumstances in which safe and appropriate care for patients and clients cannot be provided.

It is unclear to what extent such provisions are incorporated into the contracts of employment of relevant employees (see Whistleblowers at work 1: contract, confidentiality and the public interest). In the unfair dismissal complaint by nurse Graham Pink, Stockport Health Authority withdrew before the tribunal hearing, admitting unfair dismissal on the grounds of a "technical flaw in procedure". The authority offered the maximum possible award in the circumstances of £11,188, with no reduction to reflect any blameworthiness on Mr Pink's part. This was notwithstanding its arguments that he was dismissed because his contacts with the press, expressing concern about the care of acutely ill geriatric patients at his hospital, had allowed individual patients to be identified.

Despite the positive indications which may be derived from this case, the absence of a final judgment means that no conclusion can be reached on the level of protection afforded by professional codes. Indeed, the reference in the code to "an appropriate person or authority" implies that disclosure to the press or the media will be very much the exception, a view that is reinforced by the Department of Health "Guidance for NHS staff on relations with the public and the media" (see Whistleblowers at work 1: contract, confidentiality and the public interest   - although it should be noted that the NHS Guidance does explicitly countenance the possibility of staff consulting and seeking confidential advice and guidance from their Member of Parliament). Such codes, together with employer procedures or guidance on disclosure or the raising of concerns will, however, all form part of the circumstances and facts known to employers when deciding whether or not to dismiss, and must be weighed in the balance in applying the s.98(4) test of reasonableness.

A more flexible approach?

The seeds of a more flexible approach may be discerned in the EAT's comments, in the context of a case on compensation and contributory fault, in Cornelius v London Borough of Hackney.

Mr Cornelius was an accountant by profession and was employed by the council as an internal auditor. In this capacity, he became aware of certain improper and illegal activity by a stores officer at the council, and, on request, he sent, via his union, an affidavit outlining the history of the impropriety to the councillor chairing the council's performance review committee. Copies of his affidavit were sent to other councillors on the committee by Mr Cornelius's union representative. An industrial tribunal found that his subsequent dismissal was unfair. But, although the tribunal accepted that Mr Cornelius had a duty to uncover corruption, it said that he could and should have acted through the proper channels of communication with management. It was "highly irresponsible and unprofessional" of him to pass on to the chair of the committee and his union representative documents with unflattering remarks about his colleagues, and he should have anticipated the probability of wider distribution of the documents. The tribunal accordingly reduced his compensation by 50% to reflect his contributory fault (under ss.122(2) and 123(6) of the ERA).

Allowing an appeal against that reduction, the EAT held that the tribunal had no basis for and were quite wrong to conclude that Mr Cornelius had contributed to his dismissal. There is, it said, "a high duty upon local government officers in [his] position to report dishonesty in any form, and to persist if need be in ensuring that it is brought to the attention of those in authority and that appropriate action is taken." It was difficult to see how he could be criticised for passing documents, all of which related to his duty to uncover corruption, to the chair of the council committee investigating the matter, and who had expressly requested to see them. It was unreasonable, "and wrong to the point of perversity", to categorise such conduct as irresponsible and unprofessional. Similarly, the EAT could not understand why Mr Cornelius should be criticised for sending the documents to his union to obtain its advice, if he was unable to resolve the matter satisfactorily by other means, and he had not been motivated by "self-interest or any improper motive".

Disclosure after dismissal

The use or disclosure of confidential information by an employee after their dismissal cannot affect either the fairness of that dismissal under the statutory provisions, or provide the basis for a general reduction of the compensatory award under the "just and equitable" criterion contained in s.123(1) of the ERA. Thus, in Soros and Soros v Davison and Davison, the EAT held that the conduct of the employees in selling information about their former employers was not relevant to the issue of remedy. Section 123(1) is concerned with events which have taken place during and not subsequent to the contract of employment.

SAFETY VICTIMISATION

The special protection against victimisation and dismissal which is now provided by s.44 and 100 of the ERA in relation to certain health and safety matters (summarised in the box above) was passed in direct response to obligations contained in the EC health and safety "framework" Directive (No.89/391/EEC), and provisions contained in the Management of Health and Safety at Work Regulations 1992¹ ("the Management Regulations").

These provisions are considered in detail in our Guidance Note on "Health and safety: individual employment protection rights" in IRLB 492, together with our more recent Spotlight feature on Victimisation on health and safety grounds. Below we highlight their potential application to internal and/or external whistleblowers who raise health and safety issues.

Employees' obligations

Employees themselves have certain general statutory duties in respect of health and safety which may lead them to consider raising concerns with their employers, and/or in serious cases the appropriate enforcing authority (normally the Health and Safety Executive (HSE) or local authority environmental health officers).

Under s.7 of the Health and Safety at Work etc Act 1974, for example, employees have a duty while at work to take reasonable care for their own health and safety and that of others who may be affected by their acts or omissions. More specifically, reg. 12 of the Management Regulations requires employees to inform their employer or any other employee with specific responsibility for health and safety of:

The employee's duty arises in relation to a situation or matter which affects his or her health and safety or is connected with his or her own work activities, and which has not previously been reported under reg.12. These positive obligations may well be of at least evidential value both in proceedings based on ss.44 and 100 of the ERA, as well as normal unfair dismissal cases.

Safety representatives

Those provisions of ss.44 and 100 of the ERA protecting employees with designated health and safety duties, and representatives of workers on health and safety matters, apply to, amongst others, competent persons appointed by employers under the Management Regulations; health and safety representatives or committee members appointed by recognised trade unions under the Safety Representatives and Safety Committees Regulations 1977² ("the SRSC Regulations"); elected representatives of employer safety under the Health and Safety Consultation Regulations (see box above); and safety representatives designated, or acknowledged as such, by an employer. They also cover employees who are safety representatives or members of safety committees by virtue of the Offshore Installations (Safety Representatives and Safety Committees) Regulations 1989³.

The statutory functions of union appointed safety representatives and elected representatives of employee safety, for example, include making representations to the employer on general matters affecting the health and safety of the employees whom they represent, and representing those employees in consultations at the workplace with the HSE and any other enforcing authority. They also have a duty to make representations to the employer on potential hazards and dangerous occurrences, and union appointed representatives have additional rights to inspect the workplace, and investigate employee complaints.

If a safety representative is dismissed or subjected to a detriment (for example, by way of discipline or denial of benefits) because he or she has carried out, or proposed to carry out, his or her functions (whether statutory or designated or acknowledged by their employer), it is no defence in itself for the employer to argue that the representative "intended to embarrass the company in front of the external safety authorities, or that he [or she] performed those functions in an unreasonable way, unacceptable to the employer" (see the EAT's recent comments in Shillito v Van Leer (UK) Ltd). This will not of course be the case, if causing embarrassment to the employer is the representative's sole motive, and there is no genuine relationship to his or her safety functions.

But it seems that tribunals will be willing to draw fairly broad inferences as to the employer's reason for dismissal, or the ground on which any act, or failure to act (amounting to detriment), was done. In McEvoy and others v Mercury Communications Ltd, for example, a tribunal concluded that an employee had been automatically unfairly selected for redundancy because of his activities as an employer-designated "health and safety coordinator". The majority of the tribunal was impressed by evidence that a manager who was integrally involved in the redundancy process was unduly hostile to the employee's activities and, in particular, had been concerned by an incident in which the employee had identified asbestos on a site. This had ultimately resulted in a £6,000 fine being imposed on the employer for breach of its health and safety obligations, and consequent adverse publicity.

Raising grievances

The extent of the protection offered to employees generally when they seek to raise problems or grievances with their employer about circumstances connected with work which are harmful or potentially harmful to health and safety, depends largely on the approach taken to the wording of ss.44(1)(c) and 100(1)(c) of the EP(C)A. Tribunals will, as the statute requires, limit these provisions strictly to situations where there is no health and safety representative or safety committee, or where there is such a representative or committee but it was not reasonably practicable for the employee to raise the matter by those means. Employees must therefore normally be careful to follow appropriate procedures and raise matters through appropriate channels where these exist.

In Leake v Commissioners of the Inland Revenue, for example, the employee was active in raising a petition to her employer complaining about the ventilation system in her office. An industrial tribunal rejected her unfair dismissal complaint based on s.57A(1)(c) because there was no evidence to suggest that it was not reasonably practicable to raise the matter through her office safety representative.

On the other hand, where this is not practicable, it will not necessarily be unreasonable for an employee to warn the employer that, unless remedial action is taken, he or she is going to distribute to his or her colleagues a leaflet with information on the health risk of solder fumes and requesting information on whether they have noticed any negative effects from the inhalation of such fumes. In Tedeschi v Hosiden Besson Ltd, the EAT commented that a leaflet of this type had not been couched in inflammatory language, and "the fact that a person entertains a belief so strongly that he wishes to protect his fellow employees as well as himself, or that he takes the matter so seriously that he wishes to investigate whether what he believes to be his own symptoms are shared by others or not, seems to show first of all that his belief was indeed a genuine one, and secondly in so far as canvassing the extent to which other people have the same symptoms, it tends to show the reasonableness [of his actions]."

Reasonable means

As Tedeschi demonstrates, employees raising grievances under these provisions must have a "reasonable belief" in harm, and matters must be "brought to the employer's attention" by "reasonable means". It would seem that those means may be direct or indirect, but they must in all cases be "reasonable".

Some tribunals have indicated that it would not normally be reasonable under these provisions for an employee, for example, to go "over everybody's head" within his or her employer's organisation, and raise the matter immediately and directly with an external body such as the HSE (see Crew v Portven Ltd, where the tribunal questioned whether the employee had raised a grievance with his or her employer at all in these circumstances).

On the other hand, in Harris v Select Timber Frame Ltd, an employee initially raised his grievance by producing a video about health and safety matters, and showing it to one of the company's directors. The employee also complained to the HSE, which visited the company and arranged for him to have a medical examination. A tribunal held that his subsequent dismissal was unfair under s.100(1)(c). It concluded that the dismissal was prompted by his health and safety complaints (including the complaint to the HSE), and in particular the forthcoming medical examination, "coupled as it was with the threat of litigation".

It seems unlikely, however, that the provisions on raising grievances, as such, extend to raising concerns about the possible end use of the employer's products (see Brendon v BNFL Flurochemicals). But if a threat to health and safety is sufficiently serious and "imminent" (including a serious continuing danger), or is reasonably believed to be so, an employee may be able to justify taking such action or "blowing the whistle" to an appropriate outside agency under ss.44(1)(e) or ss.100(1)(e). These might arguably be regarded as "appropriate steps" taken by the employee "to protect himself or others from the danger" under those provisions.

Employee's reasonable belief

Guidance on the nature of the employee's reasonable belief under the grievance and serious and imminent danger provisions was given by the EAT in Kerr v Nathan's Wastesavers Ltd. The employee must show that:

The EAT warned that "care should be taken not to place an onerous duty of enquiry on an employee in a case such as this. The purpose of the legislation is to protect employees who raise matters of safety about which they are concerned; and the fact that the concern might be allayed by further enquiry need not mean that it is not reasonable."

It is clear that a reasonable belief in "serious and imminent" danger under ss.44(1)(e) and 100(1)(e), for example, is not limited to single or one-off catastrophic events which cause obvious harm. In Barton v Wandsworth Council, Mr Barton was employed by the council as an ambulance driver, transporting patients with mental and physical disabilities to and from council day-care facilities. He persistently confronted the manager of one of these facilities with his concerns about the lack of experience and training of "escorts" - who accompanied patients in transit, and were responsible for their general welfare - and the unsafe use of the "tail lifts" which lifted wheelchair-bound patients on and off the ambulance. As a result, he was transferred to alternative work, suspended and ultimately disciplined.

On his complaint under s.44(1)(e), an industrial tribunal found that Mr Barton believed that there were circumstances of danger that were serious and imminent, and that this belief was reasonable (his alternative claim under s.44(1)(c) having failed because it was reasonably practicable for him to have raised matters through his safety representative or committee). There had previously been accidents (including fatalities) in circumstances similar to those in the present case, the council had itself experience four non-fatal incidents (including an injury to an escort), and the danger to patients was "ongoing". Although the matters raised by Mr Barton were being discussed within council consultative committees, nothing had been done. Indeed, the situation had been sufficiently serious to warrant concern from the HSE.

The tribunal therefore had "no hesitation" in finding that the continued use of untrained escorts, with potentially serious consequences, could be described objectively as "circumstances of danger" within the relevant provision. Those words do not, it said, just refer to a single situation which is about to happen. There is no reason why they cannot apply "to a dangerous situation that had been going on for some time" (see Victimisation on health and safety grounds).

The tribunal therefore concluded that Mr Barton had suffered a detriment on the ground that he had taken appropriate steps by raising matters to protect himself or others (that is, patients) in the face of serious and imminent danger. It rejected the council's argument that he had been disciplined because of the allegedly aggressive "manner" in which he had raised his complaints, and not because of the substance of those complaints.

In contrast, in Moon v Selby, a nursery nurse at a privately run nursery school expressed concern to the local authority over safety standards at the school, in particular in relation to fire hazards and staff/pupil ratios. Remitting the case for reconsideration by the tribunal, the EAT pointed out that it is not enough for there to be a danger to health and safety, but that the danger must be reasonably believed to be serious and imminent. It was, said the EAT, difficult to see that the staff pupil ratio could of itself give rise to such a danger, unless there had recently been a significant change in the numbers. Further, the concerns expressed by the nurse were qualified, and took the form of an enquiry as to whether or not the establishment was being conducted safely. She did not appear to have formed a firm belief on this question.

Note: Other cases brought under the special health and safety provisions have involved, for example, grievances about the safety of vehicles and, indeed, portaloos which employees are required to use at work! (see, again, our Spotlight in Victimisation on health and safety grounds ).

MISCELLANEOUS PROVISIONS

There remain a number of other employment protection provisions which may be relevant to whistleblowers. These are summarised below.

Victimisation: sex race and disability provisions

The Sex Discrimination Act 1975 ("the SDA") and the Race Relation Act 1976 ("the RRA") contain almost identical provisions prohibiting discrimination by way of victimisation. Section 2(1) of the RRA (see s.4(1) of the SDA for equivalent) provides:

"A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -

(a) brought proceedings against the discriminator or any other person under this Act; or

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or

(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or

(d) alleged that the discriminator or any other person has committed an act which (whether the allegation so states) would amount to a contravention of this Act,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do any of them."

This protection does not apply to treatment of a person by reason of any allegation made by him or her "if the allegation was false and not made in good faith". The Disability Discrimination Act 1995 ("the DDA") contains similar protection against victimisation, although this extends to situations where the discriminator "believes or suspects" that the victim has done one of the protected acts (see s.55 of the DDA).

These provisions may, however, provide the whistleblower with relatively limited protection. This is because the sex and race victimisation sections have been somewhat restrictively interpreted by courts and tribunals. They have in certain cases proved willing to find that although an individual has done one of the protected acts, and has been treated less favourably than someone who has not done that act, he or she was not treated less favourably by reason that he or she had done the protected act. This may particularly be a problem where, for example, the employer alleges that in doing the protected act the employee has seriously breached trust and confidence, or duties of confidentiality, and that it would have treated anybody who did such an act, whatever their purpose, in the same way (see Aziz v Trinity Street Taxis Ltd - where the Court of Appeal upheld a tribunal's conclusion that the plaintiff was expelled from a taxi drivers' trade organisation because he had made secret tape recordings of conversations with fellow members, and not because the recordings in question might have aided him in a possible claim under the RRA).

Again, in British Airways Engine Overhaul Ltd v Francis, the EAT concluded that the reason that an employee union representative, who had made certain statements to the press, had been given a disciplinary reprimand was not because of any express or implied allegation that the employer had breached the SDA or the Equal Pay Act, but by reason of the company's view that she had broken the provisions of staff regulations on making public statements. (By contrast, the employee was found to be protected by the provisions prohibiting victimisation or dismissal on grounds of taking part in trade union activities at an appropriate time. These provisions are now contained in ss.146 and 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the TULR(C)A").)

Pension scheme trustees

From 6 April of this year, new "whistleblowing" provisions contained in the Pensions Act 1995 will impose a duty on the auditor or actuary of any occupational pension scheme to give a written report to the new Occupational Pensions Regulatory Authority ("OPRA") "immediately", if he or she has reasonable cause to believe that:

More pertinently for present purposes, s.48(4) of the Act gives express statutory permission and encouragement to professional advisers (other than the auditor or actuary), trustees (including employee trustees), scheme managers or any other person involved in scheme administration to give a report (written or oral) to OPRA, if they reasonably believe that the circumstances outlined in s.48(1) apply. Section 48(5) of the Act goes on to provide that, with the exception of legal advisers, no duty (presumably statutory, common law or equitable) to which any of the parties mentioned in s.48(4) is subject is to be regarded as contravened merely because of any information or opinion contained in a report under these provisions.

In respect of employee trustees, it is also at least arguable that any such communication with OPRA should now, at least implicitly, be regarded as part of the "functions" of a trustee for the purposes of the protective provision contained in ss.46 and 102 of the ERA. An employee should not therefore be subjected to "any detriment" or "dismissal" by his or her employer on the grounds that he or she performed (or proposed to perform) any of his or her functions as a trustee of a pension scheme which relates to his or her employment.

As with the special health and safety provisions considered above, there are no qualifying conditions for this protection, any dismissal will be automatically unfair, and the term "detriment" has the same meaning as under those provisions.

Assertion of statutory rights

An employee will also be regarded as automatically unfairly dismissed if the reason or principal reason for dismissal is that he or she brought legal proceedings against his or her employer to enforce a right of his or hers that is a "relevant statutory right", or alleged that the employer has infringed such a right (s.104 of the ERA). Relevant statutory rights are all of those rights contained in the ERA (including the right to minimum periods of notice), and rights in relation to the deduction of union dues or political fund contributions from pay, trade union membership and activities, and time off for union duties and activities found in the TULR(C)A.

It is immaterial for these purposes whether or not the employee actually has the right, or whether or not it has been infringed, although the claim to the right and that it has been infringed must be made in good faith. The employee does not have to specify the right, as long as he or she "made it reasonably clear to the employer what the right claimed to have been infringed was". Once again, there are no qualifying conditions governing this entitlement.

The way ahead?

As our features have demonstrated, the patchwork of "protection" which the law affords to employee whistleblowers is uncertain, uneven and unduly complex. It is for this reason that calls are increasingly being heard from employees' professional bodies and trade unions for workers to be given more general protection against detrimental treatment or dismissal where, for example, a bona fide disclosure of confidential information has been made in good faith and in the reasonable belief that it was in the public interest.

Indeed, there seems to be growing support for such legislation amongst employers' groups, and a cross-party consensus in favour of change on the back-benches in Parliament. This pressure has led to the introduction of at least two Private Members' Bills (for the most recent example, see the box), which have been opposed only by the present Government⁴. There have, however, been some hints that a different Government might be more favourably disposed to increased employee rights in this area.

Whistleblowers at work 2: main points to note

The Public Interest Disclosure Bill - a summary

Legislation reflecting the provisions in the recent Public Interest Disclosure Bill would protect employees and other individuals who make "public interest disclosures" of information about "significant misconduct or malpractice". It would relate to the disclosure of information which the individual making the disclosure has acquired subject to an obligation or a claim of confidentiality in the course of his or her employment, profession, voluntary work, membership of an organisation, in the carrying out of a contract or in connection with his or her responsibilities as the holder of any office. Any disclosure would have to be of a type that a court had found, or would be likely to find, was "justified in the public interest" in a common law or equitable breach of confidence action (see Whistleblowers at work 1: contract, confidentiality and the public interest).

Misconduct or malpractice

Significant misconduct or malpractice would include:

This list is not exhaustive, but is indicative of the "kind" of misconduct or malpractice that would be covered.

Protected disclosures

A public interest disclosure would, however, only attract protection where it was a "protected disclosure". This would be defined as a disclosure where the individual making it:

Protection and remedies

Employees or others who made or proposed to make such disclosures would be protected from being "penalised" by any person in relation to any employment, profession, voluntary work, contract, membership of an organisation or the holding of any office. They would also not be guilty of any offence under any enactment prohibiting disclosure. For these purposes, a "penalty" would include dismissal (including selection for redundancy); discrimination, reprisal, or other forms of adverse treatment or an unreasonable failure to protect from adverse treatment; failure to make an appointment, or to provide any promotion, benefit or advantage that otherwise would have been made or provided; or the threat of any of the above actions.

In the case of employees, complaints that they had been unlawfully penalised by their employer could be made before industrial tribunals. If the penalty took the form of dismissal, that dismissal would be automatically unfair, there would be no qualifying requirements and no limit on possible compensation. Similarly, a penalty short of dismissal could lead to unlimited compensation. Others making public interest disclosures as defined would be able to seek compensation and/or an injunction (or, in Scotland, an interdict) in the High Court or County Court (or, in Scotland, the Court of Session or the sheriff court).

Health and safety victimisation - the protected grounds

Section 44 of the ERA provides that "an employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his [or her] employer" on specified health and safety grounds⁵ ("the protected grounds"). Under s.100 of the Act, a dismissal will be automatically unfair if the reason or principal reason for dismissal falls within the protected grounds⁶. Similarly, an employee's selection for redundancy will be automatically unfair if the reason, or principal reason, for selection was one of the protected grounds (s.105 of the ERA).

The protected grounds are that the employee:

CASE LIST

Abernethy v Mott, Hay and Anderson [1974] IRLR 213

Aziz v Trinity Street Taxis Ltd [1988] IRLR 204

Barton v Wandsworth Council 12.7.95 COIT 11268/94

Brendon v BNFL Flurochemicals 2.8.96 EAT 766/95

British Aircraft Corporation Ltd v Austin [1978] IRLR 332

British Airways Engine Overhaul Ltd v Francis [1981] IRLR 9

British Home Stores Ltd v Burchell [1978] IRLR 379

Byford v Film Finances Ltd 21.5.87 EAT 804/86

Callanan v Surrey Area Health Authority 5.2.80 COIT 994/36

Cornelius v London Borough of Hackney 18.1.96 EAT 1061/94

Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84

Crew v Portven Ltd 13.7.95 COIT 63784/94

Delabole Slate Ltd v Berriman [1985] IRLR 305

Durham County Magistrates' Court Committee v Telford 5.2.88 EAT 522/87

Gartside v Outram (1856) 26 LJ Ch 113

Goold (Pearmak) Ltd v McConnell and another [1995] IRLR 516

Harris v Select Timber Frame Ltd 14.3.94 COIT 59214/93

Harvard Securities plc v Younghusband [1990] IRLR 17

Initial Services Ltd v Putterill [1967] 3 All ER 145

Kerr v Nathan's Wastesavers Ltd 27.6.95 EAT 91/95

Leake v Commissioners of the Inland Revenue 27.1.95 COIT 16889/94

McEvoy and others v Mercury Communications Ltd 19.6.96 COIT 13/171/098

Moon v Selby 20.11.96 EAT 264/96

Pagano v HGS [1976] IRLR 9

Polkey v AE Dayton Services Ltd [1987] IRLR 503

Sanderson v Mirror Group Newspapers Ltd 22.5.86 EAT 138/86

Shillito v Van Leer (UK) Ltd 31.12.96 EAT 271/96

Smith v Youth Hostel Association (England and Wales) 6.3.80 COIT 977/213

Soros and Soros v Davison and Davison [1994] IRLR 264

Tedeschi v Hosiden Besson Ltd 16.10.96 EAT 959/95

Thornley v Aircraft Research Association Ltd 11.5.77 EAT 669/76

Walker v Josiah Wedgwood & Sons Ltd [1978] IRLR 105

Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27

Wetherall (Bond St W1) Ltd v Lynn [1977] IRLR 333

Whitbread plc t/a Threshers v Gullyes 1.7.94 EAT 478/92

Wigan Borough Council v Davies [1979] IRLR 127

¹ SI 1992/2051

² SI 1977/500

³ SI 1989/971

⁴ see Hansard (HC), 1.3.96, cols. 1107-1175.

⁵ The provisions on detrimental treatment do not apply "where the detriment in question amounts to a dismissal" (s.44(4)). There is, however, one important exception to this principle. It is expressly provided that a dismissal which takes the form of the expiry and non-renewal of a fixed-term contract for one year or more - under which the employee has agreed in writing to waive his or her statutory unfair dismissal rights - will be a "detriment" for present purposes (ss.22A(4) and 142 of the EP(C)A).

⁶ There are no qualifying conditions for protection under any of these provisions. They consequently cover all "employees" employed under contracts of service or apprenticeship, irrespective of age, hours of work or length of service. On the questions of the burden of proof , time limits for complaints and remedies available, see Victimisation on health and safety grounds .

⁷ SI 1996/1513.