Time to get radical with whistleblowing

Nothing to complain about today, which is obviously a bit irritating. However I did notice two news stories that raise some interesting (I think) issues around whistleblowing.

In this story (from last week) the Guardian reports that Michael Woodford, the former boss of Olympus, has settled his unfair dismissal claim in which he alleged that his dismissal was prompted by him pointing out financial irregularities to the board. Obviously the settlement is confidential but the Guardian seems to think that the sum involved may be £10 million.

You’d manage to scrape by on that wouldn’t you?

Over at the Telegraph, a partner in a law firm who was based in Tanzania has won the right to bring a claim in the Employment Tribunal alleging that she was subjected to a detriment for making allegations involving bribery. She is also claiming that her pregnancy had something to do with the decision to let her go. In this case she can’t claim unfair dismissal because an equity partner in a law firm is not an employee. However she can claim sex discrimination and – if she is a ‘worker’ –  a whistleblowing ‘detriment’. The EAT case reported in the Telegraph is actually mainly concerned with whether she has worker status and the conclusion is that she does. There’s nothing special about that and I don’t blame the Telegraph for  missing out any discussion of that rather dull issue. There is also an issue of territorial jurisdiction, which is a subject that bores me senseless, but the EAT concludes that her links with the UK were sufficiently strong to allow her claim to proceed.

The thing that immediately strikes me about these cases is how utterly atypical they are of the normal Employment Tribunal fare.  Each has two unusual features.

The first is that the sums of money involved are huge in comparison to average ET claims. We don’t know what the lawyer is claiming in her schedule of loss, but the Telegraph puts her remuneration at £200K so you can bet that hefty sums are involved. The EAT transcript shows that her lawyers are Mishcon de Reya, which indicates that she expects sufficient damages to pay some pretty hefty legal fees at the end of the process. As for Mr Woodford, whether the Guardian’s guess of £10 million is right or wrong, we can be sure that we are talking about a pretty big sum.

The second unusual feature is that they are about whistleblowing. There is of course nothing unusual in whistleblowing claims  – but these cases actually seem to involve an employee or worker genuinely disclosing information which tends to show actual wrongdoing. Most whistleblowing claims that employers deal with on a day to day basis are much more loosely based than this and the nature of the wrongdoing alleged is usually more obscure.

The uncomfortable fact is that whistleblowing is the most seriously abused ET claim on the statute book. Protection for genuine whistleblowers is vital but the vast majority of whistleblowing claims are simply a creative attempt to get around the qualifying period for unfair dismissal, avoid the cap on compensation and just generally front-load costs on the employer. Whistleblowing is the claim of choice for the vexatious litigant.

Obviously the only evidence I have for such a claim is anecdotal – and a general impression from reading endless transcripts of decisions in whistleblowing claims that were at best creative and at worst completely misconceived.  But I’m right. Honestly, I am.

I think that the problem is so bad that the Government would be entitled to take radical steps. The current proposal in the Enterprise and Regulatory Reform Bill  is to introduce a requirement that the claimant reasonably believes that his or her disclosure is in the public interest. That will make no difference to the current situation because the problem is not that claims with no public interest element are succeeding – the problem is that hopeless and petty cases are being brought, taking up large amounts of time and generally bringing the whole subject into disrepute.

Here’s my idea. A claimant who wants to add whistleblowing to his or her claim should be required to get permission to do so from the ET (or maybe even the EAT). To do so they would have to provide clear evidence of a disclosure of information which tended to show wrongdoing  which was sufficiently serious to affect the public interest. An employer would only be required to respond to such a claim when this basic test was passed. An employee would be free to raise whistleblowing issues in the course of a normal unfair dismissal claim but claims of detriment, dismissal inside the qualifying period or claims in excess of the normal cap on compensation would only be allowed to proceed with permission.

I don’t think that this will be a serious barrier to genuine whistleblowing claims, but it would go a long way towards protecting employers from vexatious litigants. There’s a lot of loose talk about vexatious litigants in the press but we shouldn’t let that deceive us into thinking that there is no problem here. There really is.

Oh and while I’m filled with reforming zeal – do the two cases reported at the top of this post really belong in the Employment Tribunal system? Wealthy claimants claiming seven figure sums are hardly in need of a cheap and informal way of resolving their dispute. I’m not in favour of introducing across the board fees for claimants, but surely it is reasonable to expect parties in this sort of case to pick up the bill rather than have the state provide a free adjudication service for them?

So what do you think? Sensible policies for a happier Britain? All comments welcome.

About Darren Newman

Employment law consultant, trainer, writer and anorak
This entry was posted in Whistleblowing and tagged , , , , , . Bookmark the permalink.

2 Responses to Time to get radical with whistleblowing

  1. Pingback: ERR … Part 2 | Jobsworth by Michael Scutt

  2. I think you are just trying to be provocative here Darren… The only sensible way forward is to abolish the statutory ceiling on ET awards.

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