Written by Brabners LLP
Protection for individuals who blow the whistle on concerning conduct continues to be a topical subject. In recent times, individuals are more readily prepared to speak out and voice their concerns and, with that, employers are under increasing pressure to implement effective and accessible policies and procedures to facilitate and support those who blow the whistle.
What does the law say?
Whistle-blowers can achieve protection from being subjected to a detriment if they can show that they disclosed information about certain malpractices (such as a breach of a legal obligation, danger to health and safety or damage to the environment) that they reasonably believe has or might occur. They must also believe that their concern is in the public interest.
However, in order to be protected by the ERA, an individual who blows the whistle must also show that they have worker status. A worker is defined, for the purposes of the whistle-blowing legislation, as an individual who works ‘under a contract of employment or any other contract… whereby the individual undertakes to do or perform personally any work or services’ outside the context of a client/customer relationship.
Most recently, the case of Gilham v Ministry of Justice [2019] considered this topic and the importance of a robust whistle-blowing policy.
So what happened in this case?
The facts
Ms Gilham is a District Judge. She complained about the impact of cuts on the administration of justice, including about the lack of appropriate and secure courtroom accommodation, severe increases in workload and various other administrative failures. Ms Gilham alleged that her complaints amounted to protected disclosures, in that they tended to show a miscarriage of justice was likely and/or that the health and safety of individuals had been or was likely to be at risk; in her view, disclosures that were clearly in the public interest.
Ms Gilham alleged that she was subjected to a number of detriments, as a result of voicing her concerns, including being undermined and bullied by her fellow judges and other Court colleagues. Ms Gilham was signed off work due to stress.
Ms Gilham subsequently brought a whistleblowing detriment claim in the Employment Tribunal. However, the Ministry of Justice argued that Ms Gilham was an ‘officer holder’, and therefore not a worker for the purposes of the whistle-blower protections under the ERA.
Initially, the Employment Tribunal agreed with this point and held that she was not a ‘worker’ because there was no contractual relationship in place and, thus, she had no protection under the whistleblowing provisions.
Ms Gilham appealed to the Employment Appeal Tribunal (EAT) and, subsequently, the Court of Appeal. However, both courts upheld the Employment Tribunal’s original decision that Ms Gilham was not a worker and therefore was not protected as a whistle-blower.
Ms Gilham appealed to the Supreme Court.
Decision of the Supreme Court
While the Supreme Court agreed with the rulings of the lower Courts that Ms Gilham was not a worker under the ERA due to the absence of a contractual relationship, it unanimously agreed that Ms Gilham was, in fact, entitled to protection under whistle-blowing provisions of the ERA.
The Supreme Court decided the case on the basis that Ms Gilham should be able to enjoy her right to freedom of expression as an office holder. Ultimately, it was held that, denying Ms Gilham protection as a whistle-blower would be incompatible with her rights, on the grounds of her occupational status, under Article 14 of the European Convention on Human Rights.
Impact of this decision
It is anticipated that this decision will potentially have far-reaching consequences, which will no doubt include the boundaries of whistle-blowing legislation being tested somewhat. The decision in the above case opens the gate for other employee “status” challenges to be made from individuals who do not automatically qualify for rights under the ERA. This could include individuals without contracts of employment such as company directors, company secretaries, board members and other officer-holders. This case clearly outlines that Courts are required to think beyond the scope of the literal wording of legislation.
The Supreme Court’s decision also begs the question of whether the scope of protection afforded to employees and workers under the ERA could extend further, for example to secondees, job applicants or volunteers.
In light of the above, it is imperative that employers ensure they have a robust, effective and easily accessible whistle-blowing policy in place that covers all individuals and not just those with whom there is a direct contractual relationship between employer and employee.
So, with the above case in mind, what can employers do?
- Any whistleblowing policies or procedures should be clear, simple and easily understood.
- A policy should include an explanation of what whistleblowing is, particularly in relation to the organisation
- A policy should include a clear explanation of the organisation’s procedures for handling whistleblowing and the steps which individuals can take to raise concerns, which can be communicated through training.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership.
