Legal

Coronavirus and whistleblowing

9 Jun 2020 By Michelle Lamb

During Covid-19 employers should ensure they are better prepared to deal with complaints, as Michelle Lamb explains in light of relevant case law 

In the new Covid-19 world, UK employers are having to drill down into their health and safety obligations as never before. They may be risk-assessing broader areas, including transport to work. They may be having to factor in considerations such as the adequacy of the cleaning provided by their landlord under the terms of their lease, and paid for under a service charge. Not all the solutions to pandemic-related issues are straightforward.

Equally, UK workers are being forced to adjust to new environments, new measures, fast-paced change in employers' measures and government guidance. Workers feeling worried about their safety are likely to look for a way to raise those concerns. If they do not feel listened to, they may raise them formally – typically, through a ‘speak up’ channel or other whistleblowing mechanism in place.  

So where do you start with a potential escalation of whistleblowing? Step one: try to get ahead. Ensure your communication channels are open and there is an active two-way dialogue with workers. Listening is key, since you cannot know how your measures or proposals land unless you receive feedback. If you operate a social media platform for internal communication, you might task a senior individual with regularly reviewing and reporting to the management team on any identifiable issues. Tackling issues at that stage can enable you to tailor your messages to the workforce, and further develop your commercial planning. 

To gain legal protection as a whistleblower, a worker must show they have made a qualifying disclosure; ie, a disclosure of information that, in the reasonable belief of the worker, is made in the public interest and tends to show one of the relevant failures has occurred, is occurring or is likely to occur. One of those failures is that the health or safety of any individual has been, is being or is likely to be endangered. The legislation dictates to whom a qualifying disclosure can be made to be protected. It is not the case that a worker cannot gain that protection unless they raise the issue with the employer, although having workers raise concerns directly is likely to be an employer's preference.

Case law expands the above concepts. Examples include:

  • In Cavendish Munro Professional Risks Management v Geduld, the tribunal said context of a disclosure was relevant. The judge gave the example of parties walking through a dirty hospital ward at the time a worker asserted health and safety failings. He concluded that the state of the ward should be taken into account as context to the worker's statement. In a Covid-19 context, that might not be too dissimilar to a worker walking around a dirty office where bins are overflowing with used PPE and say something like ‘you are not complying with health and safety requirements’. If you were thinking that saying ‘you are not complying with health and safety requirements’ is more of an allegation than a disclosure of information, then, in Kilraine v London Borough of Wandsworth, the Employment Appeal Tribunal was clear that things are not always that black and white.
  • In Hibbins v Hesters Way Neighbourhood Project, the tribunal was clear that a disclosure can include a concern raised about third-party actions. Therefore, a worker complaining about the actions of contractors in failing to follow social distancing measures would potentially be a step closer to protection. It would not be relevant that those individuals were not employed by the complainant's employer.
  • In Babula v Waltham Forest College, it was confirmed that, as long as the worker subjectively believes the relevant failure has occurred or is likely to occur and their belief is, in the tribunal's view, objectively reasonable, it does not matter that the belief subsequently turns out to be wrong or the facts alleged would not amount to the relevant failure in law. While that means a worker's complaint will need to be grounded in some way, they need not have reasoned through a legal argument. They also may be wrong about the actual or prospective failure. This can be challenging to get ahead of.

So what is the risk to the employer if a worker has made a qualifying disclosure? The risk becomes material to an employer when the worker can allege that they have sustained a detriment, or they have been dismissed on the back of their qualifying disclosure. An individual will be more likely to rely on whistleblowing protections where they have been dismissed (even if, at the same time, they allege a prior detriment) than they are to make a detriment claim in isolation. The current landscape is such that there may be more redundancy terminations happening imminently than might be the case in other circumstances. However, that means it becomes even more important to ensure employers' redundancy processes are clearly thought through and well communicated. Being able to demonstrate an objective business rationale will be a key part of that. 

Having an active whistleblowing mechanism is a good thing. However, proactive management of communication channels and basic listening may go a long way to keeping the numbers of avoidable concerns down. One option is to focus less on whether or not workers have gained legal protections as whistleblowers. It may be less important than whether workers feel listened to and valued at this uncertain time.

Michelle Lamb is a partner in the employment team at Dentons

Information contained in our Covid-19 articles and publications is correct at the time of print. This is, however, a constantly evolving situation across the globe and specific advice and guidance should be sought as required.  

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