A protected disclosure is the disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show the existence of one of six particular states of affairs (e.g. failure to comply with a legal obligation).
Although not the subject of this article, following a recent Supreme Court decision, an LLP member is considered as a worker and so has whistleblowing protection.
But what happens if a worker blows the whistle and will not stop? Will they remain protected or could the continual noise be separated from the initial blast?
This situation was considered in Panayiotou v Kernaghan by the Employment Appeal tribunal (EAT).
Mr P was a police officer who made protected disclosures relating to officers’ treatment of victims. Although an investigation largely upheld his concerns, he continued to campaign to right the wrongs he had identified and which he thought had not been rectified. This campaign made Mr P increasingly difficult and time-consuming to manage and, after a long term sickness absence, he was eventually dismissed.
An employment tribunal (with the EAT upholding its reasoning) held that Mr P’s disclosures were not the reason for his dismissal (or other detrimental treatment). Rather than the disclosures themselves, it was the way in which the employee pursued his disclosures (i.e. his campaign and his employer’s increasing frustration) which lead to the employer treating him in the manner that it did. Although these events were related to the disclosures, they were distinct from the disclosures.
What this means for employers:
The way in which Mr P continued to blow the whistle in this case was not acceptable to the employer and it meant that the continual noise was separated from the initial toot drawing the employer’s attention to a matter of concern. However, this is a fact specific case and it will be rare that an employee’s subsequent actions will be capable of being separated from the initial disclosure (in that they are “in no sense whatsoever connected with the public interest disclosures”, as the employment tribunal had found in this case). In this case, events occurred over a number of years and the employment tribunal commented “the actions of the claimant were sufficient to try and to exhaust the patience of any organisation”.
Employers should also bear in mind that police officers do not have a statutory right not to be unfairly dismissed and it may well have been that the dismissal of another employee in these circumstances would have been unfair, even if it was not by reason of the employee making protected disclosures.
This is an area where employers should tread carefully and seek advice if they think that an employee has blown the whistle but may subsequently be behaving unreasonably. An initial investigation into the whistleblowing allegations should always be carried out.
For more details about whistleblowing please contact:
+44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.