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CooperBurnett Solicitors Tunbridge Wells Natasha Smith, Senior Associate discusses rasing workplace concerns and whistleblowing

By Natasha Smith, Senior Associate

It was reported in the press recently that despite efforts by employers to make workplaces ‘Covid-secure’, more than a third of UK workers remain concerned about catching coronavirus in the workplace, according to a study carried out by Resolution Foundation thinktank.

The UK’s whistleblowing charity, Protect, has also reported a significant increase in the number of workers contacting them to discuss concerns about their workplaces during the pandemic. As you might expect, the most common issues relate to allegations of furlough fraud and staff being exposed to unsafe working conditions contrary to government guidance regarding Covid-secure measures.

In addition, however, reports about a range of other work-related issues that are not linked to coronavirus (i.e. allegations of suspected fraud or financial wrongdoing and allegations of harassment or discrimination) are also on the rise. The research suggests this is perhaps due to employees feeling more confident raising these matters from the comfort of their own homes and away from any direct supervision in the workplace.

Of course, many employers will be dealing with the immediate challenges presented by the pandemic; focusing their efforts on managing fluctuating workloads which have been impacted whether they have been unable to open their businesses at all or where they are open but operating on a limited basis.

Employers may not feel they simply have the time to address concerns raised or feel it somehow demonstrates a lack of loyalty towards the business, however, it is clear that in due course, some of the reports being made to Protect are highly likely to translate into formal whistleblowing claims in the employment tribunals, and, potentially, even criminal and regulatory investigations being undertaken into businesses.

What is whistleblowing?
Whistleblowing occurs where an individual makes a relevant ‘protected disclosure’ to their employer about a wrongdoing at work. Whistleblowers are protected by UK employment legislation if they suffer a detriment or are dismissed for making that disclosure.

It is much more than just having a grumble and there are specific tests to be met if the individual is going to satisfy a judge that their disclosure affords them whistleblowing protection. For example:
• The worker must disclose information (merely gathering evidence or threatening to make a disclosure is not sufficient); and

• That information must relate to a prescribed wrongdoing – the most frequently relied upon being: a criminal offence, a breach of a legal obligation and a danger to the health and safety of an individual; and

• The worker must have a reasonable belief that the information tends to show one of those relevant failures; and

• Their reasonable belief must be in the public interest.

Unlike other statutory employment claims, there are two key points that employers should be aware of when it comes to whistleblowing claims:

1. There is no minimum period of employment required to qualify for the right to bring a claim; and

2. There is no financial cap on compensation that could be awarded.

Such claims are therefore a very powerful weapon for any disgruntled staff member to use against an employer, making this an increased area of risk to businesses, particularly when taking account of the current climate.

What employment rights do whistleblowers have in respect of their health and safety?
Employees and workers (many of whom work in the ‘gig economy’) who have ‘blown the whistle’ in respect of their health and safety have the right:

• Not to be subjected to any detriment in circumstances where there is any serious or imminent danger if they leave the workplace and do not return.

• Not to be subjected to any detriment in circumstances where there is any serious or imminent danger and they took steps to protect themselves or others from that danger.

• Not to be dismissed in either of the above circumstances (otherwise the dismissal will be automatically unfair).

In respect of the impact of Covid-19, we consider that it would be relatively straightforward for a worker to establish the danger to health and safety of individuals is both ‘serious’ and ‘imminent’, even with social distancing measures in place, masks being worn and workplaces being ‘covid-secure’ as unfortunately, there is no guarantee of complete safety.

Therefore, employers should exercise caution towards staff who claim they are being subjected to a detriment or who consider they have been dismissed for raising Health and Safety concerns with their employer.

What can employers do to minimise the risks of being subject to such claims?
It is crucial for employers to be alert to the potential risks of receiving such claims and to take all reasonable steps at an early stage to minimise those risks. Employers faced with the challenges of responding to a report of detriment or unfair dismissal should ensure that they:

• Treat staff who come forward with their concerns fairly and objectively;

• Listen to those concerns and seek to address them at the earliest opportunity;

• Where necessary, conduct an internal investigation into their concerns and document the outcome;

• Ensure robust procedures for reporting concerns are in place, and being followed, promoting a culture of allowing staff to speak up; and

• Continue to monitor the effectiveness of Covid-secure measures and ensure all staff are complying with the rules.

What can an employer do if staff are concerned about travelling to and from work on public transport?
This is largely untested in the courts however the wording of the whistleblowing legislation does not expressly state that staff only have this protection ‘within the workplace’, therefore it is arguable that if staff use public transport to get to and from work and they hold a reasonable belief that their health and safety could be in serious or imminent danger, they could refuse to attend work.

 To minimise legal risks, employers should consider whether there are any other alternative means for the employee getting to work, as well as looking at whether they can work effectively from home or at another site located closer to their home address.

It remains to be seen how businesses and individuals alike will respond to the latest lockdown that came into effect in England on 5 November, however it is clear that these issues are not going to go away anytime soon and the way in which employers deal with their staff during the pandemic will remain under the spotlight for some time.

If you would like to discuss any of the above issues or any other employment matter please do not hesitate to contact Joseph Oates on email: jmo@cooperburnett.com or Natasha Smith on email: nes@cooperburnett.com or tel: 01892 515022.

This blog is not intended as legal advice that can be relied upon and CooperBurnett does not accept any responsibility for the accuracy of its contents.

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November 6, 2020
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