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What is whistleblowing?
Whistleblowing happens when a worker reports certain types of wrongdoing: it is also known as making a protected disclosure.
A whistleblowing disclosure may involve wrongdoing such as:
- a criminal offence
- failure to comply with a legal obligation
- a miscarriage of justice
- danger to health and safety
- damage to the environment
- the covering up of wrongdoing
Personal grievances are not usually covered by whistleblowing law unless the particular case is in the public interest.
This is important to note as a complaint about how one employee has personally been treated may be a grievance whereas a disclosure about wider wrongdoing, risk, unsafe practice, legal breaches or serious workplace failings may be protected as whistleblowing if the legal test is met.
Professor Neil Wyn Evans, Professor of Astrophysics at the University of Cambridge’s Institute of Astronomy, has won an Employment Tribunal claim after raising concerns about alleged bullying and the treatment of female staff. The Tribunal upheld 11 of 14 complaints and found that Professor Evans had been subjected to detriments because he had made protected disclosures.
The Tribunal was careful to say that its role was not to conduct a public inquiry into alleged bullying or misogyny within the Institute of Astronomy; its task was to decide whether Professor Evans had made protected disclosures, whether he had suffered detriments, and whether those detriments were linked to his whistleblowing.
According to the judgment, allegations against Professor Evans were subjected to a prolonged investigation lasting nearly two years, even though the Tribunal found that those allegations contained little detail and no evidence. By contrast, a number of his own detailed concerns were dismissed without a proper process.
The case will now proceed to a remedy hearing, where compensation will be considered.
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What did the Cambridge Tribunal decide?
The Tribunal found that Professor Evans had made protected disclosures and had suffered a number of detriments as a result. It referred to “pre-determined outcomes”, decisions being “rubber-stamped”, limited paper trails and repeated delays in the way matters were handled.
The Tribunal described a pattern of trying to shut down Professor Evans’ complaints and protect the University from possible reputational damage arising from his protected disclosures.
The Tribunal also criticised the way decisions appeared to have been prepared for senior decision-makers, describing “ghostwriting” as a consistent and concerning theme, including one example where the person being complained about drafted the response rejecting the complaint.
For employees, the case provides an example of how a Tribunal may look beyond the employer’s formal processes and examine what was really happening behind the scenes.
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What is a detriment?
A detriment is treatment that puts a worker at a disadvantage.
In whistleblowing cases, this could include being:
- isolated
- investigated unfairly
- subjected to disciplinary action
- denied opportunities
- criticised without proper basis
- ignored
- threatened
- treated as a problem because they raised concerns
Not every disagreement with an employer will amount to unlawful treatment; however, workers are protected if they suffer detrimental treatment because they made a protected disclosure. Acas, the UK’s independent public body for workplace advice, dispute resolution and employment rights guidance, says employers must not cause a worker detriment if they make a whistleblowing disclosure.
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Why process and evidence matter
One of the strongest points from the Cambridge judgment is that process matters: if an employer receives a serious complaint, it should be handled fairly, independently and without retaliation.
For employees, useful evidence for an Employment Tribunal to consider, may include:
- copies of emails, letters or messages raising concerns
- notes of meetings or conversations
- grievance or whistleblowing documents
- investigation letters or outcomes
- evidence of delay or lack of response
- records showing changes in treatment after concerns were raised
Workers should also try to be clear about what they are reporting, why they believe it is serious, and why they believe it may be in the public interest. The legal test can be technical, so early specialist legal advice can help clarify whether a concern may be protected under whistleblowing law.
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When should employees take advice?
Employees and workers may need legal advice if they have raised concerns about wrongdoing and have then been treated differently at work.
This could include being placed under investigation, excluded from meetings, criticised, demoted, threatened with disciplinary action, pushed towards resignation or dismissed.
Time limits in Employment Tribunal claims are strict: in many employment claims, the usual time limit is three months less one day from the act complained of.
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TLW Solicitors’ comment on the Employment Tribunal case
“Whistleblowing cases are often difficult because employees may be raising concerns in a workplace where there are already tensions or power imbalances. The law does not protect every workplace complaint, but it can protect workers who raise serious concerns in the public interest.
What this case shows is that Tribunals will look closely at how an employer responds. If an employee raises a protected disclosure and then becomes the subject of an unfair investigation, delay, exclusion or other adverse treatment, the employer’s explanation may be carefully scrutinised.
In these circumstances, to protect their position employees should keep clear records of what they raised, who they raised it with, and what happened afterwards. Early advice can help them understand whether they may have whistleblowing protection and what steps to take next.”
How TLW Solicitors can help
TLW Solicitors advises employees and workers on workplace disputes, discrimination, unfair dismissal, redundancy and Employment Tribunal claims.
If you have raised serious concerns at work and believe you have been treated unfairly as a result, we can help you understand your position, explore your options and possible next steps.
Strict time limits apply to Employment Tribunal claims, so it is important to get specialist legal advice as soon as possible.
