Whistleblowing for COVID-19 related issues

On 28 January 2021, Protect published its Impact Report over 2020 and a record number of calls for support have been made to its Advice Line. Cases in June 2020 were up 74% on June 2019 and over the year, Protect saw an increase in cases of 20%.

Additional details were published in Protect’s earlier report from October 2020, The Best Warning System: Whistleblowing During Covid-19. Between March 2020 and September 2020, the Advice Line was “inundated” with COVID-19 related calls. The majority of calls were about furlough fraud (62%) and risk to public safety (34%) such as a lack of social distancing and PPE in the workplace.

Worryingly, 41% of whistleblowers’ COVID-19 related concerns were ignored by their employers but this increased to 43% where the concern was about public safety risks. As many of the concerns raised could have had very significant health and safety implications for a particular workplace, it is surprising that employers are not investigating more of them. In addition, far from being supported, 20% of whistleblowers were dismissed for raising concerns according to Protect. But it’s not just Protect, whistleblowers have also reported concerns to the Health and Safety Executive about workplace problems such as lack of PPE and social distancing.

There is no doubt that, in the context of whistleblowing, the coronavirus pandemic has had a significant impact. Whistleblowing is also likely to feature in many new Employment Tribunal claims in the months ahead. The latest quarterly Employment Tribunal statistics were published on 10 December 2020, covering the period July to September 2020. They show a 13% increase in single Employment Tribunal claims and claims are at their highest level since 2013/14. On current trends, it is very likely that we will see a continued increase in Employment Tribunal claims in 2021 and many of these will have a whistleblowing element. Consequently, it is important for employers to understand the scope of the whistleblowing legislation, the steps they can take to manage whistleblowing in the workplace and crucially, how they can support whistleblowers.

Legislation

Many employers will be familiar with the key provisions of the whistleblowing legislation and the protection it provides. However, many will be less familiar with a very important potential remedy available to employees, namely, making an application for interim relief. Before looking at that specific remedy, it is worth setting out an overview of the complex whistleblowing legislation as this will make it easier to understand why such claims are likely to increase because of the coronavirus pandemic.

The Public Interest Disclosure Act 1998 (PIDA) inserted specific provisions into the Employment Rights Act 1996 (ERA) giving protection to workers who raise whistleblowing concerns.

There are two levels of protection. The dismissal of an employee will be automatically unfair if the reason, or principal reason, for their dismissal is that they have made a “protected disclosure” (section 103A ERA). Significantly, unlike “ordinary” unfair dismissal claims, no minimum qualifying period of service is needed to bring an unfair dismissal claim, compensation is uncapped and the interim relief provisions apply.

Workers (and employees) are protected from being subjected to any detriment by an employer, its staff or agents because they have made a protected disclosure (sections 47B (1) and (1A) ERA).  The term “detriment” is not defined in ERA but looking at established case law, an individual suffers a detriment if they have been disadvantaged in the circumstances in which they have to work. For example, not being promoted, being denied training, being ostracised, being demoted, being disciplined or being subjected to bullying or harassment.

The first step in establishing protection is for the individual to show they have made a “qualifying disclosure” and there are three elements to this:

• The worker must make a disclosure of information.
• The information must relate to one of the six types of “relevant failure”.
• The worker must have a reasonable belief that the information tends to show one of the relevant failures and that disclosure is in the public interest.

“Information” must be more than merely an allegation or statement of position and the individual must actually “convey facts”. The statement has to have sufficient factual content and specificity that it can show one or more of the six types of relevant failure.

Understanding what constitutes a relevant failure is crucial so what are the six types? The categories are set out in section 43B(1) (a to f) ERA:

• Criminal offences.
• Breach of any legal obligation.
• Miscarriages of justice.
• Danger to the health and safety of any individual.
• Damage to the environment.
• The deliberate concealing of information about any of the above.

In the context of the coronavirus pandemic, it is easy to see how issues such as furlough fraud or a failure to make a workplace COVID-19 secure or to provide PPE can constitute one or more relevant failure.

The third element is whether the disclosure is in the public interest and this has led to a significant amount of litigation. The leading case is the 2017 Court of Appeal decision in Chesterton Global Ltd v Nurmohamed. Interestingly, Parliament had chosen not to define what “the public interest” means but the Court of Appeal helpfully suggested some guiding principles:

• Employment Tribunals should be cautious about determining whether the public interest test has been satisfied purely on the number of affected employees. In other words, there is no minimum number or threshold to reach.
• The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed.
• The identity of the wrongdoer will be relevant – a larger more prominent wrongdoer (ie with a large number of staff and clients) the more likely that a disclosure about their activities would be in the public interest.

Disclosures about health and safety concerns such as the lack of social distancing in a workplace or an inadequate COVID-19 risk assessment are almost certainly going to be in the public interest even if the workplace is relatively small. Similarly, a disclosure about furlough fraud or an abuse of the furlough scheme is likely to be in the public interest too if public funds are being misused.

Interim relief

In some unfair dismissal cases, for example, where there has been a trade union-related dismissal or a dismissal for whistleblowing, the employee can make an application for interim relief. It is a very useful potential remedy for an employee because the purpose of the application is to ask the Employment Tribunal for employment to be continued pending the final hearing. What is interesting about interim relief applications is the speed with which they are dealt. The application must be made within seven days of the dismissal and the hearing must be held “as soon as practicable”.

Interim relief will be granted if the Employment Tribunal is of the view that the employee is “likely” to establish at the final hearing that, in whistleblowing cases, the protected disclosure was the reason or the principal reason for the dismissal. If the application is successful, the Employment Tribunal can order re-instatement or re-engagement and if the employer does not agree to this, the employment will be continued and the employee continues to be paid but will not have to do any work pending the final hearing. Apart from those orders, a successful interim relief application has another potential benefit in that the Employment Tribunal has given an initial view on the merits of the employee’s claim and this may well lead to an earlier settlement of the claim. The opposite of course is also true if the interim relief application is unsuccessful.

Interim relief applications are not made very often and there are various reasons for this. Level of awareness may be low, the employee needs to act very quickly and has to have sufficient evidence at a very early stage to establish that they are likely to succeed at the full hearing. That could be very onerous for many employees especially if they do not have access to prompt legal advice.

We may however see an increase in interim relief applications in the coming months simply because of the increase in whistleblowing claims. But there are other reasons too. Even before the coronavirus pandemic there were considerable delays in getting a final hearing date at Employment Tribunals. The backlog of cases caused by the pandemic has caused even more delays but those delays are now exacerbated by an increase in new pandemic-related claims such as whistleblowing claims, health and safety dismissal or detriment claims and redundancy claims. Some cases are not being listed for a final hearing until 2022. Facing such a delay, many claimants’ advisers may consider making an application for interim relief if the case has sufficient merit.

Finally, on a separate point it is worth noting that claims relating to health and safety detriment and dismissal and whistleblowing, will be treated as priority claims and triaged for early determination.

Furlough fraud

Furlough fraud is described by Protect as the fastest emerging issue it has dealt with in its history. Key fraudulent activity includes organisations telling furloughed staff to continue to work or claiming for working members of staff without their knowledge. According to HMRC, up to £3.5 billion of furlough payments may have been claimed fraudulently or paid out in error (as at September 2020). With an extension of the furlough scheme to the end of April 2021 (and a further extension possible) that sum is likely to increase. HMRC say that over 1,900 reports have been made to its fraud hotline and the first arrests for furlough fraud have already been made.

Two recent developments to increase transparency and to deter fraudulent claims may well result in an increase in whistleblowing concerns being raised about abuse of the furlough scheme. Firstly, employers’ furlough claim information will be made public and published by HMRC on www.gov.uk for claim periods starting on or after 1 December 2020. A list of employer names were published on 26 January 2021 but some time in February 2021, HMRC will publish on a monthly basis, employer names, company number and the value of the claim within a banded range (there are 14 bands). Claim details will not be published where employers are able to provide evidence to HMRC that publishing would result in a serious risk of violence or intimidation. That evidence could include a police incident number if the employer has been threatened or attacked or documentary evidence of a threat or attack, such as photographs. Secondly, in February 2021, HMRC will improve the information available to furloughed employees by including details of claims made for them for claim periods starting on or after 1 December 2020, in their Personal Tax Account.

What steps should employers take? 

A comprehensive and clear whistleblowing policy is the first step to encourage internal disclosures about malpractice. Where disclosures are raised internally, it is easier for management to take effective action and to provide support to the whistleblower. In the absence of a policy, a whistleblower may simply make an external disclosure, for instance, to a Prescribed Person such as the Health and Safety Executive or HMRC.

The policy should provide an explanation of what whistleblowing is and it should set out details of the procedures for dealing with whistleblowing concerns. It should also mention which Prescribed Persons are relevant to that particular sector and organisation. An important element of the policy is the commitment to support the whistleblower. For instance, to make it clear that victimisation, harassment or bullying of a whistleblower is unacceptable and will be treated as a disciplinary matter. The policy could also signpost the guidance and support available to whistleblowers from Protect and Acas for example.

It is important that the policy is widely publicised and that training is provided on it, particularly for those who will investigate the whistleblowing allegations. Employers can be vicariously liable for the detriment caused by their staff to a colleague who has made a protected disclosure but they will have a possible defence if they can demonstrate that they took all reasonable steps to prevent the detrimental treatment occurring. Having a policy and providing training on it may help in establishing that defence. Take care however and ensure that the training is up to date and relevant. Earlier this month, the EAT in Allay UK Ltd v Gehlen, upheld the Employment Tribunal’s decision that even though staff had received equality and diversity training two years before the incidents of racial harassment, it had become “stale” and ineffective. That training was not enough for the employer to succeed in its “reasonable steps” defence. The EAT found that refresher training would have been a further reasonable step.

Finally, it is important to review the whistleblowing policy taking into account the current pandemic. For instance, check the personnel. What if the whistleblowing concern has to be investigated by someone who is currently furloughed and not working? How usable is the process if people are working remotely? Should you review timescales if health and safety issues are raised, is it feasible to investigate these more quickly? If changes are made to the policy make sure that these are publicised to staff.

Comment

With no end in sight to the coronavirus pandemic, it is likely that COVID-19 related whistleblowing allegations will continue to increase in 2021. As more people return to the workplace in the months ahead, we can expect concerns to be raised about workplace health and safety issues and the extent to which workplaces have, or have not been made COVID-19 secure. With the imminent publication of employers’ furlough claim information, more whistleblowing complaints about furlough fraud are also likely.

The financial consequences of a successful whistleblowing claim can be considerable. As mentioned above, there is no cap on the amount of compensation that can be awarded for dismissal but that applies to detriment cases too. In addition, an award for injury to feelings based on the Vento guidelines can also be made in detriment cases.

Aside from the financial implications, whistleblowing disclosures can often result in a lot of adverse publicity and reputational damage, something which all organisations would want to avoid.

This article is part of the Employment Law Newsletter – Winter 2021