2024 has been a fruitful year in the UK for whistleblowing law so far, with three key cases employers should be aware of:

Can an external job applicant qualify as a whistleblower?

One of the very first questions to ask when presented with a whistleblowing claim in the UK is whether the person who made the disclosure was entitled to protection. The Employment Rights Act 1996 protects employees from dismissal, and protects employees and workers from detriment, for having made protected disclosures. But does it cover job applicants?

In Sullivan v Isle of Wight Council, the claimant had applied for a role with the Council but was unsuccessful. About three months later, she made an unrelated complaint to the Council about alleged financial misconduct by one of her interviewers, which was rejected and the claimant was denied a right of appeal. The claimant said that her being denied an appeal amounted to a detriment because of her alleged protected disclosure. 

The Tribunal dismissed her claim, as:

• “Worker” includes those who have or had a contract of employment or a contract under which they are personally required to work for the employer, and external job applicants do not have such a contract. Although an extended definition of “worker” applies for these purposes (which includes non-employees undergoing training, certain self-employed health practitioners and agency workers), the claimant did not fall under this extended definition.
• Parliament had clearly intended to exclude job applicants from whistleblower protection.
• Though there are regulations that give protection to certain applicants for employment in the National Health Service, the role the claimant had applied for was not in the NHS.

Key takeaway: Job applicants are typically not entitled to bring whistleblowing claims. Nonetheless, employers will of course want to take all complaints seriously to reduce business risk.

Can employees who report bullying and harassment of others rely on that report for a whistleblowing complaint?

In Mysakowski v Broxburn Bottlers Ltd, the claimant raised a concern that he had witnessed a male manager inappropriately massaging a junior female employee in a way that made her uncomfortable, potentially amounting to sexual harassment. After his employment was terminated, he alleged that his dismissal was connected to his protected disclosure. 

Legally, even where a claimant qualifies for protection under the whistleblowing legislation, they must show that the disclosure itself qualifies for protection. This involves satisfying the following five key elements, which the tribunal considered in Mysakowski:

1. Was there a disclosure of information (meaning it must cover facts not just allegations)?
2. If so, what information did the claimant disclose, to whom and when?
3. Did the information disclosed tend to show that a certain kind of breach had taken place, was taking place or was likely to take place (including, for example, a criminal offence, a failure to comply with a legal obligation, or danger to an individual’s health or safety)?
4. Did the worker reasonably believe that the information disclosed tended to show one of the certain kinds of breach?
5. Did the worker reasonably believe that the disclosure was made in the public interest?

The tribunal in Mysakowski found there was a qualifying disclosure. In relation to points 3, 4 and 5 in particular, the tribunal found:

• The information tended to show, and the claimant reasonably believed that the information tended to show, a failure to comply with a legal obligation — namely, a failure to comply with obligations under the Equality Act 2010; and
• The claimant reasonably believed that the disclosure was in the public interest, as he had heard rumours about the manager’s past conduct towards female employees and raised what he had witnessed to protect his colleagues.

Key takeaway: Employers should note that where they receive complaints about harassment or the mistreatment of individuals, these may amount to protected disclosures.

Can an employee be subjected to a detriment where the decision-maker did not know about their protected disclosure?

In First Greater Western Ltd v Moussa, the claimant brought a detriment claim against his employer and two individuals for subjecting him to an allegedly unfair disciplinary process. He said the proceedings and how they were conducted amounted to a detriment for historic protected disclosures he had raised (and which had been settled) about six years prior.

The tribunal and EAT found that the individuals had not conducted the disciplinary process because of the protected disclosures. However, they had been influenced by an organisational, management-level ill-will or collective memory that was borne against the claimant as a result of the historical disclosures and that could be imputed to the company.

Key takeaway: Employers will want to ensure workers who make complaints are not demonised and that negative comments against such workers are addressed at an early stage. Training can be a helpful way to communicate this.

Summary

Protection from whistleblowing detriment may be wider than might be anticipated, so when handling particular issues employers may want to seek advice to understand who and what is protected. Case law is evolving fast so we will be sure to keep you updated.