Earlier this week, an employment tribunal ruled that two maintenance workers, who were sacked for raising concerns about health and safety at troubled Liverpool Prison, had been unfairly dismissed.
The judge in the case said that it was extraordinary that Amey – who carried the contract for prison repairs and employed the men – had not taken long service and unblemished disciplinary records into account when firing John Bromilow (66) and Harry Wildman (64). The tribunal further found that both had acted in good faith. The solicitor who represented the pair said it was a “scandalous” case.
In 2015, both men raised concerns that Amey’s policy of having maintenance staff work alone on most jobs could be a security threat as tools could be easily snatched by prisoners. After unsuccessfully trying to have the policy changed, the men called in the Health and Safety Executive. Amey suspended and then sacked the men and claimed at tribunal that both had been “intent on making things difficult” for the company, alleging their actions had “the potential to be incredibly damaging” to its reputation.
Claims for suffering a detriment as a result of making a protected disclosure – better known as whistleblowing – can be notoriously difficult claims to succeed with. This is largely due to the fact that a claimant must be able to establish not only that they have ‘blown the whistle’, but that there is a causal link between the whistleblowing act and the detrimental treatment they allege to have subsequently suffered.
In this case, the tribunal found that the principal reason the claimants had been dismissed was due to the fact that they had raised health and safety concerns.
Health and safety disclosures are one of several which can amount to ‘protected disclosures’ under the Employment Rights Act 1996, provided that the disclosure, in the reasonable belief of the worker making it, is made in the wider public interest. Other disclosures include:
- That a criminal offence has been committed, is being or is likely to be committed
- That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he or she is subject
- That a miscarriage of justice has occurred, is occurring or is likely to occur
- That the environment has been damaged, is being or is likely to be damaged
- That information tending to show any matter falling within any one of the above has been, is being or is likely to be deliberately concealed
While the tribunal usually only has jurisdiction to hear claims for unfair dismissal where the employee has enjoyed at least two years continuous service, one of the exceptions to this rule is where an employee can establish that he or she was dismissed for ‘blowing the whistle’. In those circumstances, the length of service matters not and the dismissal will be classed as ‘automatically unfair’.
Compensation for whistleblowing claims can be calculated by having regard to an employees out of pocket losses (for example where a dismissal has ensued) and injury to feelings, which are calculated in a similar way to claims for discrimination by referencing the Vento guidelines (awards for up to £30,000.00 can be made).
This case serves as an important reminder that no organisation should regard itself as immune from the issues associated with whistleblowing and certainly no organisation can afford to expose itself to the risks of unmanaged public disclosures. Every commercial business and public body faces the risk of things going wrong, of malpractice or wrongdoing, and an organisation that acknowledges this will quickly work out for itself that there are good reasons for fostering a climate in which workers are encouraged to make known any reasonable suspicions they may have.
Appropriate and effective whistleblowing policies have an important role in this regard. Such policies can bring about positive benefits such as greater commercial openness and vitality and the reduction of legal risk and liability.
In my view, they should be an essential part of any firm’s raft of policies and HR measures.