Whistleblowing takes many forms and most of us associate it with high profile revelations by employees of globally branded companies or civil servants well placed to leak uncomfortable truths.
Like most news that makes it into the media there lie behind it thousands of less exotic examples which are of no interest to journalists. Every day an employee somewhere unearths evidence of a morally or legally culpable action or omission by his employer or a fellow employee. He is then faced with the dilemma of what to do about it.
Revealing what has been discovered may bring opprobrium upon him from fellow employees or may result in being silenced by use of a number of tactics by management. There is bound to be a real feeling that revealing the unpalatable has unknown consequences. So, some employees simply re-bury the evidence and hope to be able to live with the knowledge. Others do what is probably the right thing and draw it to someone’s attention within the company or, as the legislation provides in given circumstances, outside.
If the employer does not react well to unwelcome news from a whistleblower employees are not only able to claim compensation if they suffer detriment but, if dismissed, also have the right to ask for an interim order of reinstatement and continuation of employment, pending a full hearing. An application for this relief must be made within seven days of termination and the Tribunal must conclude that it is likely that the claimant will succeed.
This extra protection can cause employers a real headache since any payments, e.g of pay, after it is made are irrecoverable even if the claimant fails at trial to prove that dismissal was because of the whistleblowing. As such the fear for the employer of this therefore strengthens the employee’s position when blowing his whistle.
So, the employer who faced with a whistleblower reacts by sacking, directly or more clandestinely, leaves himself open to trouble and shoots the messenger at his peril.
That the test that the Tribunal has to apply when considering an application for interim orders of reinstatement is of probability has recently been effectively confirmed by the Employment Appeal Tribunal ( Raja v Secretary of State for Justice – you would have though the Respondent should have known better). This means that the employee must have a “pretty good chance”, in common parlance. This is not an easy hurdle for the employee but an employer faced with an application may be persuaded to come quickly to the negotiating table.
The prudent employer will have bitten the bullet long before things got to this situation and not have despatched it into the employee.
