Discrimination Diaries: Whistleblowing

Jul 9, 2019

Our discrimination expert, Senior Solicitor Katie Harris, answers your questions on difficult discrimination issues in employment. Names and circumstances have been changed to protect the identities of those involved.

This week, Katie looks at dealing with whistleblowing.

Question
I am head of Human Resources for a care home. I need some help regarding a potential conduct issue I am having with a junior care worker whose name is Jack.

Our policy is that care workers work in pairs to administer medication to the patients. This ensures that they are jointly responsible and that they must see the process together from start to finish. Once the medication has been administered to the patient, both care workers must sign a log to confirm so. Jack and Adam are assigned to each other for this purpose.

Adam has worked for the company for five years and is very experienced. Jack has worked for the company for ten months and is still undergoing training. I run the training sessions on site, in an informal setting. It is common knowledge that Jack and Adam don’t get on, and Jack has made several complaints about Adam in the past.

On the last training day, I bought Jack lunch at the on-site cafeteria. We were talking about the most experienced care workers. Jack then made a comment about how Adam should be re-trained on signing things, like the medication log, as he often does it without following proper procedure. He said that sometimes doses of medication are missed and, as a result, Jack had spent the beginning of the week trying to regulate the diabetic patient’s blood sugars. He said, if this was to continue, patients would continue to suffer. I do always listen to Jack’s complaints about Adam and, on this occasion, re assured him that Adam is an exceptional member of staff and Jack must have been mistaken.

It has been two weeks since the training day and Jack is now refusing to work with Adam. Jack has told Adam that he does not like following his instructions because he does not always agree with what he says and does. Adam is not happy with the lack of respect.

Jack’s behaviour is continuing and Adam has requested that we begin a disciplinary procedure with Jack for insubordination. I agree that something must be done about their working relationship. Jack is always complaining about Adam, but Adam is more senior and one of our best serving employees so I do not want to lose him.

Answer
It appears that on these facts, Jack may have ‘blown the whistle’ or, in more legal terms, he may have made a ‘protected disclosure’.  If so, you will need to proceed with caution. 

What is whistleblowing?
Whistleblowing is a term used when someone has disclosed a wrongdoing within your organisation. Protection is afforded to employees and workers against being subjected to a detriment or dismissed as a consequence of having made such a disclosure, provided it meets the relevant legal criteria for being a ‘qualifying disclosure’.

What is a ‘qualifying disclosure’?
It is a disclosure of information which tends to show that one of the following types of malpractice has taken, or may be about to take place:

  • Criminal offences
  • Miscarriages of justice
  • Danger to health and safety of any individual
  • Damage to the environment
  • Breach of any legal obligation
  • The deliberate concealing of any of the above

When is a ‘qualifying disclosure’ protected?
A qualifying disclosure will become a ‘protected disclosure’ when it is:

  1. Made to the employer (or, in limited circumstances, to a third party)
  2. Made in the reasonable belief that wrongdoing has or may have occurred, and that the disclosure is in the ‘public interest’.

    It doesn’t matter if the employee or worker is mistaken, provided their belief is reasonable and genuine.  Further, a disclosure can be in the public interest even if it relates to a small number of people within the organisation itself. Grievances and complaints about the worker or employee’s own personal circumstances, on the other hand, are unlikely to be in the ‘public interest’, and so are unlikely to be ‘protected disclosures’.

Good Faith
It is a common assumption that a disclosure has to be made in good faith. However, this is not the case anymore. You may have dismissed Jack’s complaint because it is common knowledge Jack and Adam don’t get on. However, even if Jack’s comment was vexatious, it must still be dealt with seriously. Jack may have been motivated to make the disclosure because of his dislike of Adam, however Jack’s motivation is irrelevant provided he reasonably believed the disclosure was in the public interest when he made it.

How to identify a ‘protected disclosure’.
It can be difficult to identify whether a member of staff has made a protected disclosure because the staff member does not have to specifically label their disclosure as ‘protected’ nor does it have to be in a specific format, for example, in line with a whistleblowing policy.

Indeed, the recent case of Ibrahim v HCA International Limited has made it clear that employee’s do not need to attach a ‘label’ to the disclosure, or refer to the particular legal obligation or health and safety requirement it is alleged has been breached.  Provided the information discloses facts, rather than mere allegations, and relates in some way to one of the six areas of wrongdoing, it is likely to be protected.

It is for this reason that all managers or senior members of staff should be able to identify when a disclosure has been made and act accordingly. If this is not identified, you may find yourself on the wrong end of a tribunal claim.

From the information you have provided, Jack has made a disclosure in respect of the patients’ health and safety due to Adam not following proper procedures and missing patient’s medication.  He has disclosed facts, rather than making mere allegations, which are likely to have been made in the public interest as they concern patient safety.    

Detrimental Treatment
Jack may have a possible whistle blowing claim against you if he can show he has suffered detrimental treatment as a consequence of having made the disclosure. Detrimental treatment can be any treatment which is unfavourable to the worker or employee.  This is similar in nature to a discrimination claim.  If Jack is subject to disciplinary action for refusing to work shifts with Adam, he could argue he is suffering detrimental treatment.

Importantly, Jack could bring a detriment based claim not just against the Company, but also against any individuals he feels are responsible for the detriment, such as you or Adam, personally. 

Of course, Jack will have to demonstrate that the protected disclosure caused (at least in part) the detrimental treatment. However, if Jack is successful in this claim, he could claim unlimited compensation and an injury to feelings award, calculated in the same way as a discrimination claim. If Jack’s employment terminated as a consequence of having made the protected disclosure, he could also bring a claim for automatic unfair dismissal. He does need to have a qualifying period of service to bring this claim (such as with ordinary unfair dismissal claims).

What next?
It is suspected that a disclosure has been made. You will need to commence an impartial investigation in line with ACAS guidelines and your own whistleblowing policy (if you have one).  Ideally, you should appoint someone who hasn’t already been involved, and who is more senior than Adam. You should not continue down a disciplinary route with Jack until you have fully investigated the matter.

As a result of your investigation, you may need to:

  • Commence disciplinary proceedings against Adam. If you suspect he has been guilty of gross misconduct or gross negligence, then you should consider whether suspension would be appropriate. This should not be a knee-jerk reaction. You should carefully consider why you need to suspend, and make sure you have reasonable grounds on which to do so.  Make sure this is recorded in writing to Adam.
  • Commence disciplinary proceedings against Jack if you suspect his refusal to follow Adam’s instructions potentially amounted to insubordination. This will depend on whether it was reasonable for Jack to refuse to follow the instructions in light of his concerns. However, you should proceed with caution. If Jack was refusing to follow Adam’s instructions because he genuinely believed they were wrong, then you will need to take a different approach.
  • Consider whether you need to put any additional policies or procedures in place to deal with any failings.
  • Consider whether it is appropriate to dismiss either Jack or Adam, or whether alternatives to dismissal would be more appropriate such as giving Adam additional training or re-structure the care workers in order for Jack to work with an alternative senior. If the problem is Jack and Adam’s relationship, you could also consider mediation.

Best Practice
It is best practice for you to do the following in order to minimise the risk of any future whistle blowing claims:

  • Implement a whistleblowing policy

It is good practice for an employer to create a safe working environment where they feel they are able to speak up. This policy should be communicated with the work force to encourage people to:

  • Communicate with the whistle-blower

It is best to deal with the disclosure as soon as it is raised. This will allow the organisation to investigate promptly and provide feedback to the whistle-blower.

  • Train staff on whistleblowing and train staff on how to identify the protected disclosures

All discrimination claims are very fact specific and this note is intended as general guidance only. If you have any discrimination issues, we would recommend seeking legal advice. Our employment team would be pleased to assist you, and can be contacted at employment@herrington-carmichael.com or 0118 977 4045.

 

 

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