Dismissing an Employee for Blowing the Whistle Could Cost You Millions

The law provides protection against victimisation or dismissal for employees or workers reporting wrongdoing by their employers or third parties.

It is unlawful for an employer to subject an employee to a detriment such as disciplinary action, loss of work or pay, or damage to career prospects on the ground that they have ‘blown the whistle’, or in legal terms, made a protected disclosure.

A protected disclosure can relate to:

• ​A criminal offence
• Breach of any legal obligation
• Miscarriage of justice
• Danger to the health and safety of any individual
• Damage to the environment
• The deliberate concealing of information about any of the above

​It only needs to be in the reasonable belief of the worker that any of the above types of wrongdoing has taken place, is taking place or is likely to take place.

A disclosure may be an employee presenting new information to their employer which they were previously unaware, or it can involve drawing employer’s attention to a matter of which they are already aware.

The usual remedies for unfair dismissal apply i.e. reinstatement, re-engagement and compensation. However, there is no financial cap on the compensation that may be awarded in whistleblowing claims either where the employee has been found to be unfairly dismissed or in the cases of detriment. Additionally, employees are not required to have served for a specified period of service.

In the recent decision of Timis & Anor v Osipov & Anor [2018] EWCA Civ 2321, Mr Osipov made a series of disclosures and was subsequently fired. It was his employer’s view that Mr Osipov was summarily dismissed for being disruptive. At first instance, the Employment Tribunal concluded that Mr Osipov’s disclosures amounted to protected disclosure and Mr Osipov was as a result of such protected disclosure. The Employment Appeal Tribunal and the Court of Appeal went on to agree that, in whistleblowing cases, the actions of the individual co-workers, in this case, two directors who recommended the dismissal of Mr Osipov following him making a protected disclosure, were able to be held personally liable for the detriment to Mr Osipov’s i.e. his dismissal. The employer by itself was only liable for the unfair dismissal or ‘whistleblower dismissal’ and not the detriment caused to Mr Osipov. The judgment awarded Mr Osipov around £1.7 million payable jointly and severally by the directors and the employer.

​How should employers protect against claims for dismissal or detriment following employees making a protected disclosure:

• ​Implement a whistleblowing policy which sets out procedures by which staff can confidentially report concerns.
• Train management appropriately and make all aware of acts that could result in action.
• Investigate disclosures promptly, and keep the whistleblower informed as to the progress where possible.
• Consider introducing a confidential whistleblowing hotline.

Employers need to ensure that they have effective means of reporting disclosures made and identify a company-wide policy that is to be followed to monitor action and impact taken against those who do blow the whistle so as to best protect against potential claims by an employee for unfair dismissal or detriment resulting from making a protected disclosure.

MORE INFORMATION 

If you wish to speak to somebody regarding whistleblowing, either as an employer or employee, please contact our Employment Law Department who can provide specialist guidance and advice – call us or email by using the form to the right. This article was written by Emel Hamit, Trainee Solicitor at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of October 2018.