Whistleblowing continues to generate headlines and case law across a broad range of sectors and workplaces, from cricket clubs to investment banks. Upcoming editions of our HRLaw newsletter will examine recent whistleblowing developments, alongside the strategic and practical considerations for both employers and employees.

In the meantime, the employment tribunal decision of Lough v Taaks of Scotland is of note for employees and employers as the first reported whistleblowing detriment case concerning Covid-related failures.

Case summary

The employer, Taaks, had placed Ms Lough on furlough and reduced her pay to 80% of its previous level, without seeking her prior agreement.

Subsequently, the CEO of Taaks received complaints from employees in relation to the company’s failure to comply with the Scottish Government’s Covid guidelines; failure to provide a safe working environment for employees; and the requirement that employees continue working while the employer claimed furlough pay.

The provision of a safe working environment was of particular importance to the claimant as she was undergoing cancer treatment at the relevant time. The complaints were not well-received by the CEO and the claimant was eventually dismissed as a result.

Ms Lough raised a variety of claims in the tribunal, including unlawful deduction from wages and breach of contract. As regards whistleblowing, she alleged that she had made protected disclosures which showed that a criminal offence had been committed and that Taaks had failed to comply with its legal obligation to protect the health and safety of its workforce in relation to the transmission of Covid.

The Tribunal agreed that the claimant had been subjected to detrimental treatment on the grounds of her protected disclosures, including the CEO’s eventual decision to dismiss her because “she was no longer suited to the company”. The Tribunal did not accept this explanation. 

The claimant was awarded compensation of £18,000 (which reflected ongoing financial loss for 52 weeks’ earnings and £12,500 as a mid-range Vento award for injury to feelings). Significantly, Taaks and its CEO were held to be jointly and severally liable for this award, as the CEO had taken the decision to dismiss the claimant.

Comment

The fact that employers can be held liable for detrimental treatment and dismissal of employees which arises from pandemic-related failures on their part will come as a surprise to no one.

However, this case is a useful reminder that managers and executives can also find themselves on the financial hook for employment decisions which fall foul of whistleblowing law. Where employees raise concerns about Covid-related wrongdoing (or indeed any other wrongdoing), it is always advisable to investigate fully and take all necessary remedial steps, rather than “shoot the messenger”.

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