• 2nd September 2019

This article was written by Clare McNicholas from the Labour & Employment team at Law Firm Squire Patton Boggs.

Learning point 3: do not be afraid to manage workers who have raised whistleblowing concerns

At our recent workshops on whistleblowing in the workplace, we talked about how managers can feel inhibited when dealing with employees who have raised what might be whistleblowing complaints. There is inevitably a fear that any less than positive treatment or discussion or instruction or meeting will be alleged to be retaliatory in its intent and then we are off into a world of grievances and general recriminations all round. Even though you know that the warning or iffy appraisal or sharp word you are proposing is totally unrelated to the disclosure you know also that the whistleblowing context will effectively put the burden on you to prove it, and frankly it just isn’t worth the grief. It is just easier to grind your teeth in the privacy of your own desk and let whatever it is slide.

All of this is completely understandable but also obviously the wrong answer. There is nothing in the law to say that someone who has raised a concern under a whistleblowing policy cannot be managed (monitored, directed, disciplined, dismissed, etc.) in the ordinary course of the employment relationship for reasons unrelated to the complaint. Managers just need to ensure they do not treat an employee differently because they raised a whistleblowing complaint and that they can prove it.

Being a whistleblower only gives protection against victimisation for that reason. It does not protect individuals against any of the other disappointments, reversals or irritations that working life will inevitably bowl them from time to time. An employer’s best defence to such a complaint is therefore evidence that whatever treatment the employee complains about took place on unrelated grounds. If you can break any perceived causative link between disclosure and treatment, whistleblowing complaints are less likely to be made and Employment Tribunal claims are less likely to be brought (and certainly much less likely to succeed).

What we sometimes see in practice is that employers have no records/evidence to show why they have taken the action in question and this then makes it easier for an employee to argue that any detrimental treatment was because they made a protected disclosure. The reasons for any action should therefore always be documented and supported by the relevant evidence.

Whistleblowers can sometimes come across as “difficult”, “challenging”, etc. After all, it can take a certain type of person to put their head above the parapet and raise concerns about potential wrongdoing in the workplace, and nerves or anxiety can lead people to come across as aggressive or challenging quite without any intention to do so. The manner or tone in which a protected disclosure is made generally does not affect the protections it attracts.   There is the possibility (by extension from victimisation law in discrimination claims) that if the manner in which the disclosure is made is really seriously unreasonable (especially where there is any suggestion of malice and deliberation), it may be possible for an employer legitimately to respond adversely to the manner of the disclosure as distinct from the fact of it. However, that is a high hurdle and requires something more than “ordinary” unreasonableness – reacting in a hostile manner to ordinary sharp edges in the way the disclosure is made will be treated as reacting adversely to the disclosure itself. Have a look [here] for an example.

As alternatives to evidencing why an adverse decision was made in relation to a whistleblower, there are two other options open to the employer in appropriate cases: make sure that someone else makes the decision or that the person taking the adverse action does not know about (and so cannot be retaliating for) the employee’s disclosure. So where a grievance has been made against a manager, for example, ensure that decisions about the whistleblower’s pay, progression, retention are made (or as a minimum, approved) by someone outside the immediate blast-radius of the complaint. Alternatively, don’t tell the panel considering such questions that any disclosure has been made, though this may be impracticable in some cases.

And you, line manager, don’t be afraid. You know why you take a particular step or stance with a particular employee. If he/she brings a grievance about it, all you need to do is explain that reason. And look at it this way – the grievance process may be a hassle but it will be a great deal less of one than the consequences of your failing to bite the bullet early on something that thereby gets much harder to deal with later.

To view this article where it was originally published click here.