n this update, we have focussed on the headline governance and regulatory issues that are facing RPs at this time. as we all deal with the Covid-19 crisis.
What do you do if an employee persists in raising the same concern, again and again, taking up copious amounts of management time and patience? Is it ever advisable to dismiss such an individual?
At some level, the whistleblowing protection laws were drafted and introduced to protect individuals; to give a voice to employees who saw something was wrong and were brave enough to raise it without fear of harmful repercussions.
That said, as with anything, it is all a matter of degree! The lawmakers surely did not want the same protection to be offered to individuals who repeatedly bought concerns, despite a previous full investigation into those concerns, in a manner which, at the very best, is a time-wasting headache and at the worst is aggressive and disruptive.
Under the Employment Rights Act, if an employee makes a “qualifying disclosure” in the correct manner, they are protected from suffering any detriment or dismissal as a consequence of that disclosure. A dismissal of an employee for making a protected qualifying disclosure will be deemed automatically unfair.
A “qualifying disclosure” is:
- any disclosure of information that the employee or worker making the disclosure reasonably believes to be true and is made in the public interest; and
- Tends to show one or more of the following: a criminal offence has been committed, a person has failed or is likely to fail to comply with any legal obligation set; or that the health and safety of any individual has been, is being, or is likely to be endangered.
The employee, however, is only protected once this disclosure is made in the correct manner; usually to an employer.
When does the whistleblower’s protection slip?
A whilstleblowing worker/employee will lose the protection against detriment or dismissal afforded them under the legislation if their disclosure ceases to be a “qualifying disclosure”. Whilst the number of times the complaint is brought might be a key factor, repetition of the employee’s behaviour will not itself mean that a disclosure is not a qualifying one.
The key question remains; does the employee making the disclosure reasonably believe that the disclosure is true? If a disclosure has been investigated, and an employer has concluded and provided evidence to substantiate this, it is arguable whether the employee can still hold a reasonable belief that subsequent identical disclosures are true; and, therefore, they remain protected under the whistleblowing legislation.
Key things to consider when dealing with persistent whistleblowers
If the employee or workers continue to “disclose” the same information, was this disclosure fully investigated initially and is there sufficient documentation to prove it? Whilst a qualified protected disclosure does not have to contain new information, if there has already been a comprehensive investigation into the disclosure, then there is a strong argument that the employee cannot hold a reasonable belief that this disclosure is true and, therefore, that the employee remains protected under the legislation.
Our advice: However irritating multiple complaints may be, always respond to each complaint attaching documentation from previous investigations, where relevant, to back up any decision not to consider the matter as a qualified disclosure. It would be hard for an employee to prove at a tribunal that they had a reasonable belief in a disclosure if they repeatedly received a comprehensive bundle of documents that proved proper investigation of their complaints.
Is there any element of the new disclosures that was not investigated previously? If there is, or there are gaps in the previous investigation, the disclosure should be treated as a qualified disclosure until the new investigation is completed.
Our advice: Do not assume that all complaints from the same employee will be the same. Always check each complaint to see whether they raise any new information.
If you decide to dismiss the employee as a result of them persistently raising the same complaint, they will only succeed in a claim of automatic unfair dismissal if the tribunal is satisfied that the principal reason for the dismissal was the fact that they have made a protected disclosure – this is a matter of fact for the tribunal and so will rely on the contents of evidence provided.
Our advice: A paper trail providing reasons for dismissal will, again, be key in these circumstances. For example, alleging an employee was dismissed for bad performance following several disclosures is unlikely to be accepted unless there is a clear paper trail of meetings and conversations held and evidence of adherence to a procedure.
The courts have, on occasion, distinguished between disclosure and the manner in which it was brought. In one notable case, an employee “campaigned relentlessly”, had become “completely unmanageable” bringing numerous complaints and was, incidentally, not able to carry out his role for medical reasons. The EAT drew a line between the disclosure and the way it was brought. It held that the reason for the dismissal was his long-term absence and how he pursed his various complaints and not because of the disclosure itself.
Our advice: Be wary of assuming the courts will always make this distinction. More often than not it is difficult to draw a line between the disclosure and the manner in which it was made. We would advise as noted above, responding to each complaint however many times it is made and then if other issues arise (disciplinary/sickness etc.), following company procedure and, where possible, consign it to members of the HR/management team who have had no involvement in the disclosures.
This is a key area for employers, so if you would like any further information or advice please contact Matthew Gregson.
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