Move over Carla, there’s a new employment law shirker in town. Todd, the new business man on the block (didn’t he become a solicitor in London?) has been taken on at his brother’s building yard to help run the business. Part of his new role is to order in materials for building jobs. Todd, being the no-good-guy that he is, decided that he wanted to make a bit of money on the side and has bought materials which are unsuitable for the required use. Gary, the not-so-lucky builder raised a concern with Todd that the materials are not fit for purpose as they could be dangerous and that he doesn’t feel comfortable fitting them. Todd told him to just do it if he wants to keep his job.
Now I am sure that employment lawyers up and down the country are screaming “but he’s whistleblowing Todd!” just as we were last night.
So what exactly is whistleblowing?
Whistleblowing occurs where a worker makes a qualifying disclosure that one of the following has occurred, is occurring or is likely to occur:
· A criminal offence;
· Breach of any legal obligation;
· Miscarriage of justice;
· Danger to the health and safety of any individual;
· Damage to the environment; or
· The deliberate concealing of information about any of the above.
The worker also needs to reasonably believe that the disclosure is “in the public interest”.
In order for the disclosure to be protected it should ideally be disclosed to the employer, however the law recognises that sometimes this isn’t practical and workers can make the disclosure to:
· Responsible third parties (whom the worker believes is responsible for the wrongdoing)
· Parliament approved prescribed persons (HMRC, Health and Safety Executive and the Office of Fair Trading)
· Government ministers
· Wider disclosure – subject to circumstances
Employment law protects whistleblowers whose employer either dismisses them or subjects them to a detriment on the grounds that they have made a protected disclosure. Any dismissal as a result of whistleblowing will be automatically unfair. Detriment can include threats, disciplinary action, loss of work or pay or damage to career prospects.
Unfortunately Todd it is arguable that Gary made a protected disclosure on the grounds of danger to the health and safety of any individual; and unfortunately Jason (the owner of the builder’s yard), as of 25 June 2013, the concept of vicarious liability was introduced whereby the act of a worker in subjecting a whistleblower to a detriment is now treated as being done by the employer.
So what can Gary do?
There is no qualifying period of service to lodge a claim for whistleblowing and compensation is un-capped.
We would advise Gary that he is entitled to lodge a claim with the Tribunal (after first contacting ACAS in respect of early conciliation) and the deadline by which to do is three months less a day since the last act of detriment, or if Todd follows through with his threat, three months less a day from the date of termination of employment.
If you have any questions on whistleblowing, please contact the employment law team on 0113 320 5000.
