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I didn’t hear you blow the whistle

The area surrounding “protected disclosures”, better known as “whistleblowing”, is notoriously complex. It is also an area that Claimants have latched on to in recent times as unfair dismissal compensation is uncapped if a dismissal is as a result of making a protected disclosure. This has led to lots of Claimants suggesting (co-incidentally when it becomes clear that a P45 might be on the horizon) they have blown the whistle about anything & everything and much debate regarding what constitutes a “qualifying disclosure”. 

Another common claim is that a worker has been subjected to a detriment (which could include disciplinary action, loss of work or pay, or damage to career prospects) because he or she has made a protected disclosure. 

A recent case explored whether, for such a detriment claim to succeed, the person who subjected the worker to a “detriment” had to have knowledge of the Claimant’s protected disclosure, or whether it was enough for the Claimant simply to have made a protected disclosure and for the employer (or one of its employees) to have then subjected the worker to a detriment?

Thankfully for employers, the Employment Appeals Tribunal decided that the individual(s) involved in any detriment had to have knowledge of the Claimant’s protected disclosure. Otherwise, there was no evidence that the protected disclosure had materially influenced the employer’s treatment of the Claimant.

As ever, our advice to employers is to have a Whistle-blowing Policy which clearly sets out their process for dealing with whistleblowing allegations, ensure that all managers and staff are trained on the Policy, and apply it consistently in every case. Hopefully, this should reduce the risk of whistle-blowing detriment or unfair dismissal claims.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice. 

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