Protected disclosures and coronavirus

4 Jun 2020 By Toyah Marshall

With employees gradually beginning to return to the workplace, employers must make sure health and safety concerns don’t become whistleblowing opportunities, explains Toyah Marshall

A few weeks ago, MP Nadia Whittome spoke out publicly about the fact she believed she had been dismissed from her position as a casual care worker for raising issues about PPE. 

Shortly before her alleged dismissal, Whittome had spoken to the BBC’s Newsnight claiming that her employer had insufficient PPE for its employees. It is this interview, she says, that led to her employer terminating her contract. As a result, she has since actively encouraged employees to contact her if they feel they have suffered similar treatment for speaking out about health and safety concerns in the workplace – a daunting prospect for employers, who are already up against it when it comes to managing their workforce and Covid-19 risk.

With many employers now gearing up for a return to work, should they be worried about potential claims from employees making similar complaints?

Not every issue raised about health and safety in the workplace will constitute whistleblowing. For an employee to be a ‘whistleblower’, they must be reporting information they believe a) reasonably shows certain types of wrongdoing by the employer, and b) is in the public interest. This includes things such as criminal activities and, relevant here, health and safety breaches. If an employee has met these requirements, they are protected from suffering a detriment, such as disciplinary action, as a result of making a protected disclosure and can bring a claim if they feel they have been treated unfairly because of it.

While it is unclear whether Whittome’s interview would have constituted a protected disclosure, if it were, then she could have argued that the termination of her casual contract was a detriment because of the complaint she made. 

While her employer has said that it had no more need for casual workers, the timing of this coupled with its taking issue with her interview raises the argument that the two are connected and that the employer’s actions amounted to a detriment, thereby entitling her to bring a claim. Given employees do not need to have two years’ service to bring claims where whistleblowing is concerned, employers should proceed with caution. 

Even if an employee’s concerns do not constitute whistleblowing – albeit where raising health safety concerns it is unlikely – they are potentially still protected under s 44(1)(d) and s 100(1)(d) of the Employment Rights Act 1996. This states that employees have the right to not be subjected to a detriment or dismissed where they have raised concerns because they ‘reasonably believe’ that there is a ‘serious and imminent danger which they could not reasonably have been expected to avert’. 

Therefore, while an employee who has no specific concern but says they generally do not feel safe isn’t protected, one who points to an identifiable issue, such as inadequate PPE, could be. As such, employers will need to be careful when handling such concerns, especially if the employee subsequently refuses to come to work because of it. 

So does this mean that an employer is effectively prevented from disciplining employees who may have raised concerns?

Not necessarily. The manner in which an employee goes about raising their concerns or making a point about their concerns may give an employer grounds to take disciplinary action where they consider the employee’s actions to amount to misconduct or even gross misconduct. For example, an employee who raises a concern with their employer and then proceeds to make negative and detrimental statements about the business on social media could be disciplined. In this case, their actions may fall outside of the protection offered by the legislation, allowing the employer to take disciplinary action. That said, employers will still need to be able to justify any sanction as reasonable to avoid it being deemed to be detrimental treatment resulting from the concerns raised.  

While Whittome’s call to action is predominantly aimed at those working in the care sector, the publicity this has generated has made employees across all sectors more aware of their rights in relation to their safety at work and raising their concerns. With this in mind, and the fact that employers are now under the microscope, it is more important than ever that employers understand their rights and how best to handle these situations without exposing themselves to claims.

Toyah Marshall is principal employment law adviser and solicitor at Ellis Whittam

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