Where an employee raises concerns to an employer over staff bullying and harassment by another employee, can that employee rely upon whistleblowing protection if the employer terminates the employee’s employment, and that dismissal could be linked to the employee reporting bullying and harassment or where the employee resigns because matters have not been addressed properly?
The Answer
Two recent Employment Tribunal decisions would seem to suggest that the dismissed employee or where an employee resigns could rely on whistleblowing protection, as in the case of Cameron-Peck v Ethical Social Group Ltd and others, a senior employee was forced to resign after raising issues with Group CEO over staff contacting the employee in tears about bullying and rudeness they had experienced by another member of staff. Without properly addressing the matters raised, the employer removed the employee from certain responsibilities, suspended the employee without any specific misconduct allegations being made with the potential for a disciplinary hearing taking place and as a consequence, the employee resigned and took the matter to the Employment Tribunal who decided, amongst other things, that such disclosures fell within whistleblowing protection as related to health and safety concerns of individuals who had been, were being or were likely to be endangered due to alleged bullying and harassment, thus disclosure were in the public interest.
In another case, Mysakowski v Broxborn Bottlers Ltd, a short service employee raised concerns over a senior male manager massaging the shoulders and neck of a junior female employee who appeared to be uncomfortable about this, but the employee was not willing to disclose details of the victim at her request thus wanted the employer to address matters by a memo communication to remind staff about inappropriate behaviour but was dismissed instead and claimed automatically unfair dismissal for blowing the whistle. The Employment Tribunal decided that disclosures fell into failure to comply with a legal obligation, namely, obligations under the Equality Act 2010 thus in public interest, as the employee had heard rumours about sexual harassment by this senior employee towards female employees and had witnessed it first hand and thus the disclosure was to protect others.
The Risk/Threat
There is no qualifying period of employment required in making a whistleblowing claim, but a claim must be made, in normal circumstances, within 3 months less a day of the incident and where an employee is successful in a whistleblowing claim, there is no cap on the maximum amount of compensation that an Employment Tribunal can award as in the case of Cameron-Peck v Ethical Social Group Ltd and others, the worker was awarded £77,889 in compensation for detrimental treatment on the grounds of making protected disclosures along with a further £10,000 for injury to feelings.
What You Need To Do
Whistleblowing matters can be complex, where employers need to get their procedure right from the outset, thus must have robust whistleblowing policies that identifies what matters fall within this category and how they will be addressed. If you require any further assistance with this issue, please do not hesitate to contact our HR/Legal Advice Line Team on 01455 852 028.
