Surges in whistleblowing claims…

Senior Associate, Claire Hollins explains the surge in workplace whistleblowing claims.

Workers who ‘blow the whistle’ are entitled to protections which include protection from detriment or dismissal as a result of blowing the whistle. Since the Covid-19 pandemic, whistleblowing claims have continued to increase from claimants, specifically those who have less than 2 years’ service. Tribunal’s have also seen that claimant’s are frequently submitting applications for Interim Relief hearings, which allows a claimant to get to a Tribunal hearing quicker rather than waiting for a final hearing. Interim relief applications are a method used by Claimants to try and prevent financial difficulty in the time before their case has gone to the full final hearing – applications for interim relief can only be made in certain situations which involve automatic unfair dismissal.

There have been several recent new cases which have considered the law around whistleblowing, specifically in the recent judgment of the Employment Appeal Tribunal in Fry v Kingswood Learning.

Fry v Kingswood Learning

Mrs Fry was made redundant at the start of the Coronavirus pandemic and at the time of her dismissal, did not have 2 years’ service and as such, did not have the requisite length of service to have ordinary unfair dismissal rights. Mrs Fry brought a claim, alleging that her dismissal was due to her making protected disclosures regarding the conduct of her line manager, who was the one who had taken the decision to dismiss her.

The Employment Tribunal found that at the time of Mrs Fry’s dismissal, the dismissing officer (her line manager) was not aware that Mrs Fry had made the protected disclosure or had raised the allegations about his conduct. It was submitted that the reason she was made redundant was based on commercial factors, taking into account the questions which were raised in the consultation meetings.

Notably during the final hearing, there were a number of dates as to when the dismissing officer alleged he became aware of the protected disclosure, but the Employment Tribunal concluded that they had become aware of it after her dismissal and as such, Mrs Fry’s dismissal was not tainted by whistleblowing, meaning her claim for automatic unfair dismissal failed.

Mrs Fry appealed to the Employment Appeal Tribunal on the basis that it was perverse and wrong for the Employment Tribunal to determine that the decision maker was not aware of the protected disclosure prior to dismissal and that inadequate reasons were given for the conclusion which had been reached.

The Employment Appeal Tribunal supported the original ruling that the dismissing officer was not aware that Mrs Fry had blown the whistle and therefore the dismissal could not be for whistleblowing.

Our comments

We are finding an upsurge in interim relief applications, largely due to the delay in listing of full hearings, in some cases it is likely to take up to two years for these claims to conclude. With an interim relief application, you can potentially get into the Tribunal within a few weeks of issuing your claim. The threshold to succeed in the application nis high – the Claimant must show the claim is likely to win. However, savvy claimants are using the application to put employers under pressure at an early stage. The consequences on a losing employer can be significantly detrimental. The claimant is entitled to be awarded a continuation of their employment (or equivalent salary) until the final hearing.