Chris Leitch: The answer is blowing in the wind after appeal

WHISTLEBLOWERS who believe they have been dismissed or suffered because they informed on their bosses or fellow employees will find it harder to win in tribunals following a new ruling, which clearly comes down on the side of the employer.

The case, which was heard in the Court of Appeal in London, found in favour of the employer and against whistleblowing staff who claimed they had been transferred, not offered shifts and subjected to hostile and unpleasant acts by fellow workers because of their actions.

The judges agreed that it was not enough simply to say that, had it not been for the whistleblowing, the employees would not have been victimised and bosses could take steps to manage the situation.

During the hearing, the whistleblowers’ charity Public Concern at Work also tried to argue for a much wider interpretation of the law. It wanted a far more difficult test imposed on employers, both in claims for dismissal following whistleblowing and other detriment cases. However, this was dismissed by the court.

This case will undoubtedly provide some comfort to employers, putting hurdles in the way of such claims and making them easier to defend in the future.

But while it is worth reflecting on the fact that the whistleblower legislation has a very real and valid purpose, this case is unlikely to be enough to prevent the legislation being abused.

Employees often try to argue that they were dismissed for a whistleblowing issue – such as a health and safety complaint or bullying or harassment – because they don’t have enough service to claim “simple” unfair dismissal.

Unlike a “simple” unfair dismissal case, the whistleblower can force an employer into very contentious hearings quickly by using a remedy called interim relief. Strict time limits apply to make such claims and a tribunal must hold a hearing “as soon as practicable”, giving the employer at least seven days’ notice.

Anecdotal evidence suggests that well-advised senior employees can make “tactical disclosures” to enhance the prospects of a bigger pay-out if they suspect they are going to be forced out of an organisation. They then seek to argue that a protected disclosure (i.e.: the whistleblowing) is the real reason for their dismissal, thus potentially enhancing their negotiating power.

Senior executives taking such action know the combination of a potentially unlimited claim, the prospect of a rapid interim relief hearing and the potential risk of adverse publicity is a potent one.

Interim relief hearings are rarely postponed, and only if the tribunal decides there are “special circumstances”.

What is clear is that an organisation facing a well-planned “ambush” will have to act quickly to gather, assess and develop a strategy to ensure that the rapidity of the attack does not leave it with limited options.

The whistleblowing legislation encourages workers to make internal disclosures to employers (or other responsible persons) but they have to be made in good faith.

It is very difficult for an employer to establish that a disclosure is not made in good faith and it is for the employer to show that good faith is lacking in most cases so the odds are still often stacked against the employer.

The desire of bodies like Public Concern at Work to argue for a wider, more employee-friendly approach to what is required to establish cases and to shift the evidential burden more heavily to employers will not be welcomed by businesses given the already significant pressures they face. Employers can, therefore, take some comfort from the rejection of the charity’s argument that whistleblowing should be treated in a similar way to European-based discrimination law.

Employment rights become a critical issue in times of economic hardship and it is interesting to see the winds of change seeming to blow back in favour of the employer.

• Chris Leitch is a senior associate with Tods Murray