Raising the bar on raising concerns

The raising concerns agenda is in the limelight again and its scope is expanding.

28/09/2016

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Jodie Sinclair

Partner

The raising concerns agenda is, once again, in the limelight; and, as ever, its scope is expanding. Jodie Sinclair reports.

Employers can come in pairs

In a case called McTigue v University Hospital Bristol NHS Foundation Trust, the Employment Appeal Tribunal (EAT) has considered the circumstances in which the 'end user' client is required to provide whistleblowing protections to an agency worker. The Employment Rights Act 1996 contains an extended definition of 'worker' for the purposes of whistleblowing, which goes beyond the usual definition. In this case, the worker in question was engaged under a contract with both the end-user Trust and the agency which supplied her to the Trust. Overturning an employment tribunal decision, the EAT said that there was no need for the Trust to have determined the majority of the worker's terms in order for it to be potentially liable to her under whistleblowing protections; as long as the worker does not substantially determine their own terms of engagement. It is, therefore, possible for an agency worker to benefit from whistleblowing protections against both their employer (the agency) and the end-user client – in other words, there can be two 'employers' for these purposes.

In case that exercise might be somewhat tricky to apply, the EAT helpfully set out at paragraph 38 of its judgment a list of questions which should be asked in order to determine if an individual is a 'worker', under the extended definition for the purposes of whistleblowing rights (section 43K(1)(a) of the Employment Rights Act 1996).

Ignorance is not bliss…or a defence

In a similarly expansive decision, called Royal Mail Group Limited v Jhuti, the EAT decided that an employee could be automatically unfairly dismissed for making protected disclosures, despite the dismissing manager being unaware of the protected disclosures made by the employee. Therefore, a decision made by one person in ignorance of the true facts and who is manipulated by someone else who is responsible for the employee and does know the true facts, can be attributed to the employer. The EAT highlighted that the tribunal had mistakenly relied on a case which analysed thought processes required for direct discrimination claims; although these regimes are similar, they are distinct and different principles apply to each. By extension, employers would be wise to avoid conflating the two concepts and falling into the same error.

HEE expands whistleblowing protections for junior doctors

Health Education England (HEE) has agreed to close a gap in whistleblowing protection which prevented junior doctors from making protected disclosures to HEE because there was no direct employment relationship between doctors and HEE. There will now be a contractual right for doctors to 'blow the whistle' to HEE. Although this cannot provide junior doctors with recourse against HEE in an employment tribunal (because of the lack of employment relationship), it would enable whistleblowing claims against HEE to be litigated in the mainstream courts. HEE has said it will contact employers to ensure the new clause is added to contracts and publicised.

Raising concerns and financial services – September 2016 changes

As we reported earlier this year, the new whistleblowing regime in the financial services sector represents a significant expansion of the scope of previous whistleblowing rules and guidance. Whilst new 'whistleblowing champions' have been required since March 2016, affected firms have now hit the 7 September 2016 deadline to comply with the rest of the new rules, set out in a supervisory statement and policy statement. These go beyond the basic requirements under the statutory whistleblowing regime and require affected firms to put in place a range of internal procedures in order to facilitate whistleblowing complaints and support employees who raise concerns. Any concerns raised must also be monitored and reported, both internally and to regulators.    

Note that the new rules have a wide scope, beyond the basic statutory whistleblowing regime – for example, the concerns covered by the new rules include disclosures relating to a firm's failure to comply with its policies and procedures; which goes beyond the strict statutory definition of a 'protected disclosure'.

In addition, there is a requirement that firms include specific wording in their Settlement Agreements, confirming that the agreement does not prevent protected disclosures from being made. This simply confirms the statutory position: contractual terms which purport to prevent whistleblowing are automatically void; but highlighting this to individuals signing up to such agreements is considered good practice.

As the new rules and practices bed in and employee awareness of whistleblowing rights increases, firms may see a corresponding increase in claims and complaints. In order to be best protected against such claims, affected firms would be well advised to adhere to both the letter and the spirit of the new regime: ensuring that the regulatory boxes are ticked, and also that managers' are trained to recognise and deal with relevant disclosures correctly and promptly. Bevan Brittan's employment team has a wealth of experience in advising and supporting clients not only on the technicalities of whistleblowing issues, but also on the necessary skills transfers to management and staff and the practicalities of embedding a safe whistleblowing culture within organisations. Please do contact me if you require any further information.

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