The Old Grey Whistle(blowing) Test
It was recently reported that a former head chef was awarded £36,581 after an Employment Tribunal found he had been unfairly dismissed by his employer for whistleblowing.
The chef worked at Number 1 Bar in London and was dismissed having been told that the kitchen was closing. In fact, the kitchen didn’t close and continued to serve food after he was dismissed.
The Employment Tribunal found that the real reason the chef was dismissed was because he had ‘blown the whistle’ about health and safety matters – he had raised concerns about kitchen equipment after burning his hand whilst working.
As we previously reported, whistleblowers who make a qualifying “protected disclosure” are protected from dismissal and from being subjected to any detriment on the ground that they have made a protected disclosure.
In 2013, a ‘public interest test’ was introduced (which replaced the requirement that a protected disclosure had to be made in good faith). To satisfy the test, the worker making the disclosure must have a reasonable belief that the disclosure is in the public interest. The test was introduced to try and narrow the circumstances in which whistleblowing protection would apply (see our previous article here) – following a case in which it was held that a breach of the whistleblower’s own contract of employment could amount to a qualifying disclosure. However, recent cases on whistleblowing have shown that Tribunals are prepared to find that the public interest test has been met in a wide range of situations.
In this case, the Employment Tribunal found that the chef’s disclosure were in the public interest because “anyone who came into that kitchen was likely to be endangered by faulty equipment”. Therefore although the kitchen was not open to the public, the public interest test was still satisfied.
The Court of Appeal is due to hear a case on 8 June 2017 in relation to the public interest test. The case is an appeal against the Employment Appeal Tribunal decision in Chesterton (see our previous article on the case here) that the public interest test can be met if the disclosure was of interest to only a section of the public, not necessarily the public as a whole. We will of course keep you up to date with any significant developments in this area.
So, why does it matter? There is no minimum length of service required for an employee to bring a whistleblowing claim, and no cap on the amount of compensation that the Employment Tribunal can award if the employee’s claim is successful. As Peter highlighted in his article last month, this can be a potential trap for the unwary when dismissing employees with short service. Therefore it is important that employers review their whistleblowing policies, and make sure that managers receive training on how to deal with any complaints or concerns.
We can help with creating or updating a whistleblowing policy, as well as advising on any particular situation. Please contact any member of the Pure Employment Law team for assistance (01243 836840 or [email protected]).