Protected Disclosures - what do employers need to be aware of?

This week, an Employment Tribunal has struck out a Claimant's claim for Automatic Unfair Dismissal where the Claimant argued she was dismissed because she made a protected disclosure. The Tribunal found that the Claimant was not the one who made the disclosure.

For a dismissal to be automatically unfair, the disclosure made by the employee must be a 'protected disclosure' and be the reason (or principal reason) for their dismissal.

A protected disclosure must be a disclosure of information which the employee (or worker) making the disclosure reasonably believes is made in the public interest. The disclosure must also show at least one type of wrongdoing or failure contained in Section 43B, Employment Rights Act 1996.

Namely, that the disclosure tends to show:

(a) that a criminal offence has been committed, is being committed or is likely to be committed;

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which [they are] subject;

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur;

(d) that the health or safety of any individual has been, is being or is likely to be endangered;

(e) that the environment has been, is being or is likely to be damaged; or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

In this case, the Claimant, who worked with vulnerable residents, alleged that her dismissal was automatically unfair on the basis that she assisted a resident to make a complaint to a regulatory body.

At the Hearing, it was successfully argued on behalf of a client that the Claimant did not make any such disclosure, with her merely supporting the resident to make the complaint.

Employers should remain cautious that employees with two years' service or more may also have a claim for 'ordinary' Unfair Dismissal.

In this case, the Claimant did not have two years' service, however in some circumstances the claim could still proceed.

The Tribunal would then have to decide whether the decision to dismiss was for one of the five potentially fair reasons and was both substantively and procedurally fair. This differs from the claim of Automatic Unfair Dismissal as a dismissal for the above reasons will always be found unfair by the Tribunal, who will not go on to consider overall fairness and whether the employer acted reasonably in the circumstances.

Key takeaway points of this case for employers are to have clear whistleblowing policies in place and ensure they are followed in practice. Managers should have up to date training on how to act on complaints that are raised to ensure that individuals who make disclosures are not punished as a result.

An employer's failure to handle any disclosures correctly, should they later amount to qualifying protected disclosures, could also lead to claims from their workers or employees of being placed at a detriment (under Section 47B, Employment Rights Act 1996).

Employers should therefore treat all disclosures and / or complaints seriously and in accordance with their internal procedures and take prompt legal advice on any query they may have.

In the event of a successful claim for detriment or dismissal based on having made a protected disclosure, there is no upper limit to damages that can be awarded. Unlike in claims of ordinary Unfair Dismissal, there is no cap on compensatory awards in claims of Automatic Unfair Dismissal. An employer may also be the subject of an interim relief application in a claim of Automatic Unfair Dismissal. The consequence of a successful application being an order for continuation of the Contract of Employment, namely the employer would be liable to pay the employee's salary and benefits up to the Final Hearing.

Compensation for a successful detriment claim can include a claim for injury to feelings and compensation for loss of earnings.

Employers should be aware that successful claims can be extremely costly and in exceptional cases, even amount to career long losses.