Blowing the whistle on poor practice in the workplace

An orthopaedic surgeon in England has been successful at the Employment Tribunal after claiming he was unfairly dismissed from The Care Quality Commission (CQC).

Shyam Kumar worked part time as a specialist advisor at the CQC providing expert advice into the practice of surgical units from 2014 to 2019. During his time in post, Mr Kumar raised patient safety and governance concerns with senior colleagues on a number of occasions.

In February 2019, Mr Kumar’s position at the CQC was terminated and he claimed this was due to the protected disclosures he had made. He brought a case for unfair dismissal under special provisions inserted into the Employment Rights Act 1996 (ERA) by the Public Interest Disclosure Act 1998. This is more popularly known as the “Whistle-blowers Act”.

What is the Public Interest Disclosure Act 1998?

Under the Public Interest Disclosure Act 1998, workers are protected from being dismissed or penalised by their employers for disclosing misconduct by either their employer or third parties. These whistleblowing provisions apply to an extended class of worker which includes not only employees but also some contractors, trainees and agency staff.

What type of disclosures are protected?

In order to become a protected disclosure, the information being reported must first be a ‘qualifying disclosure’. This means any disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and concerns one or more of the wrongdoings found in relevant sections of the ERA, namely:-

1. that a criminal offence has been committed, is being committed or is likely to be committed;
2. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject;
3. that a miscarriage of justice has occurred, is occurring or is likely to occur;
4. that the health or safety of any individual has been, is being or is likely to be endangered;
5. that the environment has been, is being or is likely to be damaged; or
6. that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

How does a qualifying disclosure become a protected disclosure?

In order for a qualifying disclosure to become a protected disclosure, it has to be made to an appropriate person or organisation listed in the ERA which includes:-

• the worker’s employer;
• the person responsible for the misconduct;
• the worker’s legal adviser;
• government ministers;
• a person prescribed by the Secretary of State; or
• a person who is not already covered, provided that certain conditions are met.

The remit of who protected disclosures can be made reflects the public interest element and is designed to ensure workers are able to make the necessary disclosures freely. Employers should therefore consider implementing a whistleblowing policy so that workers know the appropriate procedure to follow if necessary.

How does whistleblowing interact with unfair dismissal?

Section 103A of the ERA 1996 sets out that an employee is regarded as being unfairly dismissed if the principal reason for dismissal is that the employee made a protected disclosure. In figuring out the reason for the dismissal, the facts of each case must be considered to determine whether a causal link is established between the worker’s disclosure and the employer’s dismissal.

In doing this, a worker’s length of service will govern who the burden of proof lies with. If the worker does not have 2 years’ continuous service (being the qualifying period of service needed to bring a claim for ordinary unfair dismissal) then the burden of proof will lie with them to show the reason for the dismissal was the disclosure. If however, the worker has 2 years’ service then it will be down to the employer to show why the worker was dismissed.

While the Kumar case was fact-specific and did not establish any particularly novel points of law, it is a timely reminder that as a matter of public policy, employment law rightly places a very high priority on the importance of whistle-blowing where apparent wrongdoing or poor practice is identified.  It also affords special protection to those making the disclosures and can result in quite significant damages being awarded against any employer found to have acted unfairly.  In Mr Kumar’s case, the Manchester Tribunal awarded £23,000 for injury to feelings as they felt the principal reason for dismissal was the disclosures.

If you would like to discuss whether your policies on whistleblowing are up to date or feel you could benefit from some refresher training in this area, please get in touch with a member of the Employment Team on 03330 430350.