12 June 2020

Whistle-blowing on the rise during and after lockdown

A surge in whistle-blowing claims is likely as we emerge from lockdown, with some examples already of employers allegedly abusing the furlough system and employees being asked to work in situations which contravene government guidelines.

All employees and workers are protected by law if they qualify as whistle-blowers and are given particular protection if they report any of the following;

  • a criminal offence
  • danger to someone’s health and safety
  • risk or actual damage to the environment
  • a miscarriage of justice
  • a breach of the law by an employer
  • the covering up of wrong doing.

There already have been, and will continue to be, whistle-blowing claims, particularly in relation to the first two categories. While the pandemic was bound to bring out the best in people who respond positively and proactively in relation to their workforce, regrettably, a small proportion have attempted to take advantage of the situation.

We have been instructed in cases where employees and company directors were encouraged or instructed to attempt to defraud the government’s furlough scheme.

Examples include a situation where a company director was instructed to furlough staff, but notified them that they were to work from home as normal and if asked, they were to deny that they were working from home (it is a necessary precondition of entitlement to a furlough grant that the employee is undertaking no paid work).

In such a situation, the director or employee involved can claim whistle-blowing status (as could all of the employees involved in the attempt to defraud the scheme) providing they made a ‘qualifying disclosure’.

A ‘qualifying disclosure’ must involve the concerns being raised with any of the prescribed people and bodies or with the employer. Unsurprisingly, this will include HMRC (who administer the furlough scheme) and the Health & Safety Executive; the list of prescribed bodies can be found here.

Health and safety issues are likely to be among the concerns – several notifications have already been made to the Health & Safety Executive about any unreasonable requirement by an employer that employees should work in contravention of the government guidance.

Such concerns are likely to proliferate as and when the lockdown restrictions are eased and employers are required to return to work. Unscrupulous employers may be tempted to try to cut corners, particularly if trading has been poor and cash flow adversely affected.

The duty of care owed by employers, to protect the health and safety of their workforce remains – it would be inappropriate to request an employee, for example, to sign a waiver or indemnity before allowing them to return to work.

To qualify as whistle-blowing, the disclosure must be made in the public interest, rather than for purely personal reasons. Given the global scale of the pandemic, any legitimate or reasonable concerns should readily fall within this definition.

Why does this matter?

Any employee who claims the benefit of whistle-blowing protection has certain important and significant rights;

  • Any dismissal on the grounds of whistle-blowing is automatically unfair.
  • There is no qualifying period for whistle-blower protection (unlike unfair dismissal and redundancy where an employee can only bring a claim if they have two years’ continuity of employment).
  • Any compensation is unlimited in relation to whistle-blowing claims.
  • The tribunal has the power itself to refer any concerns to the appropriate regulatory body, if the employee has not already done so.
  • The employee is protected not only against dismissal but also from being subject to a detriment on the grounds of whistle-blowing.

It is very important to bear in mind that a qualifying disclosure made to the employer might qualify as whistle-blowing. It does not necessarily require disclosure to a third party.

Employers must be alert to the significant risks posed by a whistle-blowing disclosure which might result in unlimited compensation (quite apart from any regulatory consequences if disclosure has been made to one of the prescribed bodies).

If you are either an employer or an employee in this situation, please contact Chris Mayers, based in our Cardiff office at cmayers@hcrlaw.com.

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About the Author
Chris Mayers, Partner, Head of Employment in Wales

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