As the Enterprise and Regulatory Reform Bill wends its way through parliament, the government keeps adding miscellaneous bits and bobs to it. Perhaps most noteworthy are the proposals to implement regulation of the Press post-Leveson by inserting amendments which appear entirely out of context, primarily because that is precisely what they are!
New employment law is creeping in by a similar method. Two recent additions that enhance the rights of whistle-blowers and extend protection to employees dismissed on the ground of political opinion have appeared in the last few weeks
One set of amendments to the Bill have been prompted by the fallout from recent high profile issues within the NHS, and are aimed at strengthening protection for whistle-blowers. They will:
- – introduce a provision whereby the detrimental acts of one co-worker towards a whistle-blower will be treated as being done by the employer, thus making the employer responsible (vicarious liability);
- – add a requirement for protected whistleblowers to be “acting in the public interest”;
- – remove the requirement for disclosures to be made in good faith (while at the same time providing power for tribunals to reduce compensation by up to 25% if they are not made in good faith); and
- – provide a defence for an employer who is able to show that they took all reasonable steps to prevent the detrimental treatment of a co-workers to towards another who blew the whistle.
These changes have resulted primarily from the case of NHS Manchester v Fecitt. Three nurses who raised concerns about the qualifications of a colleague were subjected to victimisation Continue reading
Hill v Governing Body Of Great Tey Primary School is another high profile case which I mentioned briefly last month. Since it concerns disclosure of information and that is such a hot topic at the moment the decision is, I believe, worth further analysis, particularly in terms of the possible application of the European Convention on Human Rights The case concerned a dinner lady who was dismissed for breach of confidentiality after telling parents about a nasty bit of playground behaviour involving their child (the innocent party) without permission, and then going to the local press about it when she was suspended. The child had been tied to a railing in the playground and whipped across the legs by other pupils. There were red marks on her legs and rope burns and scratches on her wrists.
When she was sacked she made an unsuccessful whistle-blowing claim, and a successful unfair dismissal claim.
An Employment Tribunal found that she had been dismissed unfairly because the investigation and disciplinary process before dismissal were unfair, but that she would have been dismissed within a couple of months had a fair procedure been followed – and she was also guilty of 80% contributory fault, reducing her compensation accordingly. The Tribunal concluded that she would have been dismissed fairly after two months if proper procedure had been followed, and taking into account in addition the 80% deduction on account of her contributory conduct, awarded her £49.99
The Employment Appeal Tribunal (EAT) overturned the decision and remitted it for a rehearing. Continue reading
Whistleblowing has been well and truly in the news this month and on 26 February the government announced a strengthening of the protection provided to those who make disclosures. The Enterprise and Regulatory Reform Bill is to be amended to include protection for employees who suffer bullying or harassment from co-workers. At present the only protection available is in respect of action taken by the employer.
The protection will make employers vicariously liable for the acts of co-workers, in much the same way as the protection which already exists in the event of discrimination. The employer will therefore be held liable for the actions of co-workers unless it is able to show that it took all reasonable steps to prevent the detrimental treatment of the whistleblower by the co-worker or workers.
Employment Relations Minister Jo Swinson (who, as a result of recent news concerning Lord Rennard no doubt has this very much in mind at the moment!) said:
The protection offered by whistleblowing legislation is strong but there are always ways to improve it. This amendment takes into account recent events and will place whistleblowers, who are making a difficult decision, in a better position. They will now have a specific employment protection in place and be able to have the full force of a tribunal behind them if they suffer any detriment, bullying or harassment from a co-worker.
The change will not impact on good employers who see that it as their responsibility to make sure their staff have a good working environment.
Examples of whistleblowing issues in the news this month include:
- – A health services manager who says that he was gagged by the NHS and prevented from speaking out about patient safety concerns (BBC News; Mail Online)
- – A gas market whistleblower who was sacked after accusing utility companies of price fixing (Guardian Online)
- – A BBC whistleblower who says that he was threatened with prison for contacting the media (Guardian Online)
- – A Lord Rennard accuser dismissed with gagging clause after telling her employer she was pregnant (Daily Telegraph) Continue reading
The decision of the Employment Appeal Tribunal in Clyde & Co LLP v Winkelhof  UKEAT 056 holds that limited liability partnership (LLP) members may be "workers" for the purposes of whistle-blowing protection, even if they are remunerated in part by a profit share. The case concerned an equity member of a LLP who worked in part in the UK and in part for an associated firm in Tanzania. She was expelled from the partnership after she made allegations of bribery and corruption against associated Tanzanian firm AKO Law’s managing partner, Kibuta Ongwamuhana. She made a complaint that her expulsion was detrimental treatment on the ground of a protected disclosure. She also made complaints of sex discrimination and pregnancy discrimination.
At a preliminary hearing her claim was rejected because she did not fall within the definition of a "worker" and was therefore not entitled to protection. The Employment Appeal Tribunal overturned this decision, concluding that she fell within the definition of a worker, that is a person working under a contract "to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual". Although, for some of the time, the claimant was working on her own account, when she did so, the respondent partnership was not her client.
The question also arose whether the tribunal had jurisdiction to hear her claims under the Equality Act 2010 (which specifically covers partners) when she worked partly in Tanzania (she had spent 78 days of the year in London). Continue reading
More confusion on the correct causation test in whistleblowing cases as the Court of Appeal controversially overturns the EAT decision in NHS Manchester v Fecitt. The Court of Appeal has held that section 47B of the Employment Rights Act 1996 (protection from detriment on the ground of a protected disclosure) is infringed if a protected disclosure materially (i.e. more than trivially) influences an employer’s treatment of an employee who has made a whistle-blowing allegation. It also held that an employer cannot be made vicariously liable under the whistle-blowing legislation for such actions of its employees as one might otherwise argue amount to victimisation. This is because an employer can only be held vicariously liable for the legal wrongs of its employees (see the House of Lords decision in Majrowski v Guys and St Thomas’ NHS Trust). In contrast to discrimination legislation, there is no clear statutory provision which makes it illegal to victimise employees who make protected disclosures.
Revisiting briefly the facts of this case, it concerned three nurses who worked for NHS Manchester and who, in various capacities, raised concerns about the qualifications of a colleague. An investigation disclosed no major concerns but the three nurses did not let the matter drop and caused general dissent among the staff working with them. As a result of what then became a ‘dysfunctional’ working atmosphere, one claimant had her managerial responsibilities removed, one was redeployed and the other, a bank nurse, was given no further work. They brought claims that they had been subjected to a detriment under s.47B Employment Rights Act. NHS Manchester’s response was that the reason for its actions was that it was the ‘only feasible method’ to deal with the dysfunctional working conditions created by the three nurses. Continue reading