Treating whistleblowers detrimentally can be costly

A tribunal has awarded to a whistleblower career loss damages of approximately 15 years’ average annual earnings up until retirement at age 67 because it decided that “the respondent’s treatment of the claimant has destroyed the claimant’s life”.

The employee’s successful tribunal claim for automatic unfair dismissal followed that employee’s whistleblowing disclosure. The claim has (so far) taken 7 years to progress through the courts (including a Supreme Court judgment). The employee also received a six-figure compensation award including personal injury damages of £55,000, an injury to feelings award of £40,000 and an aggravated damages sum of £12,500. 

The whistleblowing disclosure

The employer’s unlawful detrimental treatment of the claimant began two months into her employment after she reported to her line manager concerns about a colleague’s perceived non-compliance with Ofcom’s guidance and with company policy. She also asserted that the business which flowed from that colleague’s improper conduct would assist that colleague in achieving their targets and in securing a bonus for herself and, indirectly, for the line manager. After this report was made, which constituted a whistleblowing disclosure by the claimant employee, that line manager then singled out the claimant for detrimental treatment. He subjected her to intensive (and unreasonable) performance improvement processes over several months and suggested to her that she would not pass her trial period. The claimant was then signed off sick from 12 March 2014 with work-related stress, anxiety and depression, and remained off sick for the remainder of her employment. Her employment terminated with effect from 21 October 2014 at which time she was in her mid-forties. The claimant had since then not been able to find new employment.

The claimant brought successfully an automatic unfair dismissal claim on the ground that she was treated detrimentally for making a protected disclosure which was found to qualify as a whistleblowing disclosure. 

Ordinarily, two years’ continuous service is required to claim unfair dismissal. The claimant had less than one year’s service when her employment ended. One of several exceptions to the two years’ service rule, where no continuous service qualifying period is required, is where, as here, the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure- effectively a (qualifying) whistleblowing disclosure. Also, compensation for this type of dismissal is uncapped, contrary to the position for an “ordinary” unfair dismissal.

An aggressive defence 

The employer then also sought to reduce the amount of the compensation award to be made against it by raising as a defence that the claimant had a lifelong vulnerability and predisposition to develop anxiety, depression and panic attacks. However, the tribunal decided that did not absolve the employer from any liability for mental injury to the claimant caused by its behaviour.

This case is an extreme example of prolonged detrimental treatment arising from the disclosure starting during the employment and ending with the conduct of a long and contentious remedies hearing (which itself resulted in the aggravated damages award). 

It demonstrates how an aggressive response to the defence of a claim by an employer can, when it is unsuccessful, increase the overall liability cost. 

It also shows the need both for clear whistleblowing processes and effective governance and monitoring of their effectiveness to prevent managers circumventing these controls. 

Early-stage resolution processes would appear highly advisable to use in challenging cases of this type in order to mitigate the risk of very substantial compensation awards.

If you are an employer who requires support with whistleblowing policy operation and disclosures and the fair employment processes these require, please contact Charlie Barnes.