Whistleblowing continues to be an area which is coming under increased scrutiny; both inside and outside the employment tribunal system. In this article we summarise some of the recent developments.

Changes to the Code of Fundraising Practice

In July 2017, the Fundraising Regulator made an addition to section 1.6 of the Code of Fundraising Practice.  By 30 November 2017, all fundraising organisations must have a clear and published internal procedure for members of staff and volunteers to report any concerns they may have regarding their organisation’s fundraising practice. This can be either a standalone policy or part of a wider whistleblowing policy made available to staff and volunteers.

In either case, the policy must include:

  • the type of issues that can be raised and the process for doing so;
  • how the person raising a concern will be protected from victimisation and harassment;
  • how and what the organisation will do in response to receiving such information; and
  • how an individual can escalate their concerns on fundraising practice to the Fundraising Regulator (or the Independent Fundraising Standards and Adjudication Panel for Scotland).

In our live Webinar yesterday, Louise Rea set out these requirements in more detail and provided guidance on how to embed best practice within your organisation. A recording of this Webinar is available on request.

The ‘Iago situation’

In Royal Mail Ltd and Kamaljeet Jhuti the Court of Appeal considered the vexed question of whose knowledge is attributed to the employer in a claim of automatic unfair dismissal under section 103A of the Employment Rights Act 1996.  This claim will only be established if the fact that the claimant made a protected disclosure is the sole or principal reason for their dismissal. 

In this case, Mrs Jhuti had made protected disclosures to her line manager, Mr Widmer, who bullied and harassed her into retracting her concerns and then proceeded to unfairly manage her performance. Ms Jhuti submitted a grievance and went on sick leave. Another manager, Ms Vickers, was appointed to review Ms Jhuti’s case. Ms Vickers knew nothing about this background and was given an incomplete and misleading account by Mr Widmer which did not alert her to the fact that Ms Jhuti had made protected disclosures. Ms Vickers terminated Ms Jhuti’s employment for poor performance.

The Court of Appeal held that the fairness of Ms Jhuti’s dismissal must be judged only by what Ms Vickers knew as she was the decision-maker. The fact that Mr Widmer knew about the protected disclosures and this had motivated his treatment of Ms Jhuti did not render her dismissal automatically unfair.  Ms Vickers reasonably believed Ms Jhuti to be a poor performer and the protected disclosures were therefore not the sole or principal reason why she had taken the decision to dismiss.

The Judgment discussed the possibility that the knowledge of a manager who is appointed as the investigator who then passes a report to a disciplinary manager may be attributable to the employer. It is also conceivable that a CEO or equivalent may procure an employee’s dismissal but the Court of Appeal declined to express a definitive view on whether the CEO’s knowledge would be attributable to the employer. This case has therefore left open the prospect of successful ‘Iago’ cases in such circumstances.

Ms Jhuti had in any event been subjected to detriments in the form of bullying and harassment. A detriment claim can be brought against an individual employee or manager for which the employer may be vicariously liable.  The Court of Appeal expressed the opinion that in principle losses occasioned by a claimant’s dismissal may be recoverable as compensation for an unlawful detriment which caused the dismissal. This is likely to be a point which will be tested in future cases.

Whistleblowing in the public interest

In our Charity and Social Enterprise Autumn Update , Louise Rea examined the Court of Appeal’s decision in Chesterton Global Ltd v Nurmohamed. This confirms the following factors are relevant when deciding whether a disclosure is in the public interest:

  • The number of people affected;
  • The nature and importance of the interests affected;
  • The nature of the wrongdoing disclosed; and
  • The identity of the alleged wrongdoer.

This may be the case even where the disclosure relates to an apparently private dispute between employer and a worker or group of workers about their own terms and conditions of employment or working conditions. Employers therefore need to exercise caution when assessing whether a concern or complaint raised by an employee or worker may be a protected disclosure.

 

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Louise Rea

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Posted on 03/11/2017 in Legal Updates

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