What a Relief!

There’s often bad feeling from business leaders and and management towards whistle blowers. 

Jes Staley the former CEO of Barclays was famously fined £642,430 by the FCA, and reportedly had to forfeit £500,000 of his bonus, following his attempts to identify an anonymous whistle blower in 2016.

So what happens when the whistle blower’s identity is known? Quite often, it seems, they find themselves the target of an investigation, which can lead to a disciplinary process, suspension, demotion or dismissal. Some whistle blowers find themselves on a performance improvement plan, with unrealistic and unachievable targets, leading to resignation or dismissal. Others find their positions at risk, and are ultimately selected for redundancy. Their employers breathe a sigh of relief that a “difficult” individual  is no longer part of the organisation, and convince themselves that they are justified in dismissing the “trouble maker” because their conduct, capability or poor selection score proves that they were not right for the business.

Not always, of course. The best employers take whistle blowing seriously. They have detailed, well publicised whistle blowing policies, and employees know that they can raise their concerns without fear of reprisals or repercussions. Managers are familiar with the whistle blowing policies and they are trained to listen, and escalate concerns accordingly. Investigations into the whistle blower’s concerns are open minded and thorough. Failings are acknowledged and changes that need to be made are made swiftly. Some whistle blowers are even praised or rewarded for speaking up in the public interest, and for saving the employer from possible future fines or adverse publicity by highlighting areas of risk.

However, increasingly, employment tribunal claims are being brought for automatically unfair dismissal, where the alleged reason (or principal reason) for termination is that the claimant has blown the whistle. Often such claims are accompanied by claims of unlawful detriment on grounds of whistle blowing. 

The fact that there is no two-year service requirement, and the absence of a cap on compensation in whistle blowing claims (compared with the current £93,878 compensatory award -or a year’s salary if lower- for standard unfair dismissal claims), can make this an attractive proposition for whistle blowers who find themselves dismissed or forced to resign.

So far, so bad for employers. But it could be worse. Much worse.

Whistle blowing claims can be difficult for claimants to win. There are a lot of things that the claimant needs to prove. Disclosures are “protected” if they contain information which tends to show that a breach of legal obligations has occurred, is occurring or is likely to occur, and if made in the public interest. The alleged whistle blowing unfair dismissal is only automatically unfair if a protected disclosure is the reason, or principal reason, for dismissal. And whistle blowing claims typically require multiple days in tribunal,  so they take many months - sometimes even years - to come before the tribunal. All of which can mean claimants need to spend a considerable amount on legal fees - as well as a significant emotion and time investment - to give them their best possible chance of success. That can be difficult if they’ve just lost their job. Understandably, employers and their lawyers have become skilled at kicking the whistle blowing claim can down the road, requesting further and better particulars, and putting the claimant to strict proof of every minute aspect of their claim. This often results in the claimant giving up, settling low, running out of money or all of the above. Either way, it’s regarded by the employer as a decent result.

But employees who believe they’ve been dismissed for whistle blowing have a potential game changer: Interim Relief. 

Interim Relief applications can be brought by employees who are claiming automatically unfair dismissal - but they can’t hang about. The application must be made by the end of the seventh day following dismissal and must include the claim for automatically unfair dismissal. Tribunals will list the matter for an urgent hearing (usually one day) where the matter will be considered summarily and a decision given speedily - usually the same day. The Judge does not decide the case definitively. Rather, they must decide if it’s “likely” that the claimant will succeed in all aspects of their automatically unfair dismissal claim. In other words, it must be “likely” that the disclosures made were protected disclosures and that they were the reason, or principal reason, for dismissal. 

For Interim Relief applications “likely” has been held to mean that there’s a “pretty good” chance that the claimant will succeed. Although Interim Relief applications are rare, and successful applications are even more rare, they do happen, and claimants do occasionally succeed. And when they do, the Judge will either order that the employer take the employee back or (in the likely event that the employer won’t have the employee back) make a Continuation Order which means the employer must continue to pay the claimant’s salary (backdated to the date of dismissal) until the substantive hearing is decided, with no obligation to work. Furthermore, the payments are potentially tax-free up to £30k as they’re treated as termination payments rather than emoluments from earnings, and the claimant does not have to repay if they ultimately fail to win the substantive hearing.

All of this means that the successful claimant in an Interim Relief application will have a regular income from their former employer all the way up to the hearing. So they are more likely to be able to stay the course if they intend to progress their claim all the way to the end. The Interim Relief decision will also be published on the tribunal decisions website so the whistle blower will also achieve some publicity about their dismissal for alleged whistle blowing (whether or not that is part of their objectives).

So, how can employers avoid losing at an Interim Relief hearing? The easiest way would be by not dismissing whistle blowers in the first place. Put aside any disappointment or resentment and treat whistle blowers with respect. Take it at face value that they have raised concerns in the public interest rather than to deliberately damage the business. Often it takes a good deal of courage, and much soul searching, to raise concerns with an employer or to blow the whistle to a regulator.

Where there are concerns about the actions and motivation of a whistle blower, stop and consider the optics. Starting an investigation into a whistle blower, or suspending them, immediately after finding out they have blown the whistle just looks suspicious. It looks like retaliation. 

Managers and business leaders who know that they (or their close relatives and associates) are implicated by the whistle blower in protected disclosures are unlikely to be regarded by the whistle blower or by a tribunal as impartial investigators, suspending officers or disciplining officers. So, if there are genuine concerns about a whistle blower, employers should ensure that those implicated in the whistle blowing disclosure have no involvement with any disciplinary or capability (or redundancy) procedure involving the whistle blower. If necessary, maybe because of a shortage of internal resource, outsource investigations or disciplinary processes to ensure greater objectivity and avoid the appearance of retaliation.

Don’t make a mountain out of a molehill, and be consistent. You can’t take an overly robust approach to a whistle blower’s alleged misconduct or poor performance if you do not hold their colleagues (or yourself) to the same standards. Again, it just looks like retaliation.

Remember, if the optics don’t look good, a dismissed whistle blower is potentially going to be able to provide sufficient evidence for a Judge in an Interim Relief application to find there’s a “pretty good” chance that whistle blowing was the reason, or principal reason, for dismissal. And that sigh of relief at resolving a difficult situation by removing a “problematic” employee could potentially prove to have been badly misjudged.

Although they’re rare, we’ve successfully represented a number of clients in Interim Relief situations recently. Do get in touch if you’d like any advice in this area.