Dear HR Law Auntie

We have a real dilemma at the moment. Our Company is going through a redundancy process at the moment but someone junior in the HR department has been suggesting that our approach could be breaching employment legislation.

We have explained to this individual that we take our legal obligations very seriously and therefore we consider our actions to be within the law. We have now excluded this individual from assisting with the redundancy process as his opinion is proving to be very disruptive.

This individual is now saying that we have treated him detrimentally and is claiming that he has “blown the whistle on us”! We think he is mad, quite frankly, but is there any force in his claim?

From “wound up about whistleblowing”

 

Dear “wound up”

It is probably a welcome relief for you as, in light of the present case law, it is unlikely that this individual could succeed in any whistleblowing claim.

The exact wording of the whistleblowing legislation must be followed very carefully if an individual is to gain rights and protection under its provisions. To prove that an individual has made a “protected disclosure” (i.e. one which would entitle the individual to protection from dismissal or detriment) the individual would have to first prove that the disclosure is a “qualifying disclosure”. This is the step we are most concerned with here.

A qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, relates to one of the issues prescribed by the legislation. These would include (but not be limited to) a belief that a miscarriage of justice has occurred or is likely to occur, that the health or safety of any individual has been, is being or is likely to be endangered, or that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.

In the recent case of Kraus v Penna, it was considered that the suggestion that a company’s approach “could” breach employment legislation fell short of the “likely to” breach requirements referred to above. Simply stating that there is a risk of such a breach was not held to be sufficient. An individual would have to show, instead, that the information disclosed, in his reasonable belief at the time it was disclosed, tends to show that it is “more probable than not” that the employer will fail to comply with its legal obligation.

This recent decision does tend to fall in your favour, and also considered a further issue of relevance to your scenario. Kraus v Penna also established that an individual’s “reasonable belief” relates to the information disclosed and not to the existence of a legal obligation. The tribunal took a strict interpretation and held that if, as a matter of law, employers are not under any legal obligation, a worker will not be entitled to protection under the legislation if he merely believed that this was the case. It is likely that the average employee is not going to know when their employer is or is not under a legal obligation, as a matter of law, and even if a worker believes this to be the case, if they are wrong, they receive no protection at all.

Case law as it stands in this area is reasonably tough on employees and may indeed discourage certain employees from blowing that whistle even when they have genuine concerns. However, until we have a decision which swings the balance back to the nature of concerns held by employees, your employee is unlikely to be able to bring a successful whistleblowing claim.

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