Should you be concerned about increasing whistleblowing claims?

Although whistleblowing claims have been on the rise in the last few years, and this is a trend that is continuing in recent months.

This is concerning for many employers as these types of claims can be brought by workers or employees and can be extremely costly to defend at an employment tribunal, due to the complexity attached to this type of claim.

What is whistleblowing?

Whistleblowing occurs where a worker or employee makes a protected disclosure relating to some form of wrongdoing which has a public interest perspective.

A person can issue a claim in an employment tribunal if they suffer loss or harm as a result of making this disclosure. For example, losing their job, missing out on a promotion or some other negative impact.

Potential reasons for increase in whistleblowing claims

In April 2012 there was a change in law that required people to have worked for their employer for two years in order to bring an unfair dismissal claim, where previously it had been one year. This resulted in an increase in claims on other grounds such as discrimination and whistleblowing.

Whistleblowing claims can be issued regardless of someone’s length of service. They are also potentially more valuable to an employee compared to basic unfair dismissal claims, as there is no applicable statutory cap in the losses that can be suffered and the potential to recover additional awards for losses that go purely beyond income loss.

Consequently, the general public tends to have an increased knowledge around whistleblowing and the qualifying factors to succeed in a claim.

The effect of COVID-19

As a result of the COVID-19 pandemic, many businesses are having to make difficult decisions.

With the employment market looking increasingly unsteady and many facing the prospect of longer periods without work, this trend of increased claims looks likely to continue.

Employees might try to issue a claim for whistleblowing as there is no cap on the value of compensation if they succeed.

The focus on health and safety, and the need to comply with government guidance, may make it more likely for employees or workers to raise concerns that fit within the definition of a protected disclosure.

Impact of the increase in whistleblowing claims

In general, whistleblowing claims are lengthier and more complex cases than unfair dismissal claims. This means they take more time and resources to defend and also take up more of the employment tribunal’s time to resolve. The increased complexity of claims has certainly contributed to the backlog within the tribunal system, which will only increase due to the difficulties caused by COVID-19.

Undoubtedly with an increase in whistleblowing claims, there will be an increase in employees seeking interim relief. An employment tribunal has the power to grant interim relief which might include continuation of employment until proceedings can be concluded. This means employers will have an ongoing obligation to pay their employee’s wages until the tribunal makes a decision. This can have a detrimental effect on finances, for example if the employer’s original intention was to make the employee redundant.

Tips for employers: dealing with whistleblowing claims

While companies are dealing with multiple issues as a result of COVID-19, it is still important to take any complaints received seriously. This will minimise the risks of whistleblowing claims made against you in the employment tribunal. This is particularly true if complaints relate to issues of malpractice in any form, or have a public interest aspect to them.

You should either have a whistleblowing policy or internal policies that can be followed to manage whistleblowing complaints and ensure that these policies are followed in order to satisfy employees that their concerns are being dealt with properly. You should provide proper training to managers and supervisors responsible for dealing with the complaints to ensure they follow the right practices.

We recommend that you keep a record of any complaints received by employees as well as details of any investigations carried out in relation to complaints. A clear, documented list of how you have dealt with complaints will support your case if matters reach the employment tribunal. This also helps demonstrate that you as an employer took complaints seriously and acted accordingly.

Further support

Our upcoming webinar on Thursday 10 December will explore issues covered in this article in greater depth.

The webinar is free to attend and features our employment law experts as well as guest speaker Dr Gregory Burke, Head of Employment Law at 7BR barristers chambers.

This content is correct at time of publication