Employment law provides protection for workers in the UK against any form of victimisation by their employers and against dismissal (i.e. retaliation by employers) in response to employees reporting wrongdoing by their employers. This is commonly referred to as 'whistleblowing' protection.
There are two levels of protection for whistleblowers who are employees:
- The dismissal of an employee will be automatically unfair if the reason, or main reason, for their dismissal is that they have made a "protected disclosure" (i.e. 'blown the whistle" regarding employer wrongdoing at work which also affects others). This can include complaints that the employer has broken the law in some way, such as health and safety failings.
- Workers (as well as employees) are also protected from being subjected to any detriment (less favourable treatment) on the ground that they have made a protected disclosure.
There is no financial cap on compensation in successful whistleblowing claims and (unlike ordinary unfair dismissal claims, which require 2 years' service in Great Britain or one year's service in Northern Ireland), there is no requirement for a minimum period of service in order to bring a claim for unfair dismissal where the dismissal is for an automatically unfair reason (such as whistleblowing).
The Employment Appeal Tribunal has confirmed in a recent legal ruling that whistleblowing protections can apply even after an employee has left the business if the treatment they receive from their ex-employer is closely linked to their previous role and their whistleblowing disclosures.
In this appeal case, a junior doctor raised concerns about patient safety while employed by an NHS Trust following the death of two patients at a hospital, which the doctor alleged was due to understaffing levels. That whistleblowing claim was settled without any financial settlement. The case attracted significant media attention at the time and the Trust wished to respond to that. Accordingly, the Trust then made a series of public statements on its website, to other NHS Trusts, as well as briefings and letters to MPs and public officials in response to media interest in the case. The doctor brought a further tribunal claim, alleging that those statements were defamatory, given also that some of the recipients were potential future employers and also amounted to post-employment detriments linked to his earlier protected disclosures amounted to post-employment detriments linked to his earlier protected disclosures.
The employment tribunal initially rejected the claim, stating:
- Most of their published statements weren’t harmful enough to be a “detriment” for whistleblowing purposes.
- Those that could be seen as harmful to their ex-employee weren’t caused by the whistleblowing.
- Whistleblowing protections didn’t apply because the doctor was no longer employed.
The Employment Appeal Tribunal’s decision
On appeal from the employment tribunal decision, the Employment Appeal Tribunal ruled that the tribunal had made two key errors:
- It failed to properly assess whether the Trust’s refusal to remove the statement, despite regulatory concern, was a form of detriment.
- It wrongly concluded that whistleblowing protections don’t apply to former employees.
The Employment Appeal Tribunal clarified that former employees are protected from retaliation due to whistleblowing if the alleged mistreatment is closely connected to both their previous employment with their ex-employer and the protected disclosures they made when they were employed.
However, the appeal was ultimately dismissed. This was because the Employment Appeal Tribunal agreed with the employment tribunal that the evidence indicated that the Trust’s decision not to remove the statements on their website was due to the court case having a negative impact on those considering applying for jobs with the Trust and a wish to protect its reputation. As such, the NHS Trust’s actions in publishing the statements were driven by reputational concerns and media pressure and not by the whistleblowing itself.
The ruling is a reminder for employers that employee whistleblowing protections don’t end when employment does.
Post-employment actions, like public statements concerning an ex-employee, or job references for ex-employees, can still be challenged by the employee in an employment tribunal where those actions are seen as retaliatory due to employee whistleblowing.
Employers are advised to take legal advice where a former employee has raised concerns and tread carefully when discussing their departure or performance publicly. Fact sheet guidance and template letters regarding employee whistleblowing can be found on the FSB Legal and Business Hub.