Advocate Chris Brooks, Consultant and Head of Litigation at Simcocks Advocates answers questions on whistleblowing, which is in the news following two decisions of the Isle of Man Equality and Employment Tribunal this Spring involving government scientists.

What are the decisions?

The one everyone is talking about is Dr Rosalind Ranson's claim against the DHSC.  Dr Ranson essentially disagreed with management about the Department's handling of Covid 19.  The Tribunal found that she had been subjected to detriment, including in not being transferred to a new role at Manx Care that had previously been promised.  Unusually for the Tribunal, the public gallery has been packed and events have been reported not only locally but also in the UK.  Partly because of the subject matter, and partly because of the political scandal regarding failures by the DHSC to disclosure relevant documents in the Tribunal process.  On the 12th May 2022 DHSC Minister, David Ashford, said he wouldn't resign; he was gone by the 20th.

Dr Kennington was a Government Scientist working for DEFA who had, for many years opposed the dumping of silt from Peel Harbour to sea.  This caused internal conflict with the DEFA CEO.  He resigned and relied on a number of disclosures.  He argued he had suffered detriment, including being overlooked for promotion, humiliated and not provided with a copy of an investigation report into the dumping of sediment at sea.  His claim failed.

What is a whistleblowing claim?

Readers are likely to be familiar with the concept of whistleblowing given that most larger workplaces now have a whistleblowing policy that enables members of staff to come forward and make allegations or provide information in confidence if they believe something is not right.  The Employment Act 2006 allows workers to bring a claim that they have been subjected to detriment or have been dismissed or constructively dismissed as a result. 

Only certain kinds of disclosure and circumstance qualify as a “protected disclosure”, which gives the whistleblower rights but the whistleblower is not required to use any formal process or to indicate to the recipient that he is making a protected disclosure.  If employers are not careful, they may fail to realise that they are in receipt of protected disclosures and that might make it more likely that they expose an employee to detriment perhaps only subconsciously.  This might then lead to a Tribunal claim for compensation.

Why bring a whistleblowing claim?

The main reason for relying on whistleblowing after termination of employment is that, unlike ordinary unfair dismissal, compensation is not capped by statute at £56,000.  Particularly where pension loss is involved, compensation could readily be ten times as much as in an ordinary case of unfair dismissal.

For many, there is also a keen sense of injustice and a need for acknowledgement and vindication.  This psychological need does not always sit nicely with the legislation, which is very focused and specific such that if a person meets the precise legal test then they qualify for compensation but can readily miss out if they do not.

Should I resign?

It's often the case that, perhaps after many months of suffering at work, a worker feels they can go on no longer, and decides to resign.  Any resignation needs to be planned carefully because, as with any constructive dismissal, what is said at that time will have a bearing on the Tribunal's view of why they resigned.  A letter setting out the reasons is normal. 

OK…. But when?

It is very important that a claimant both resigns at the right time and then brings any claim swiftly.  The claimant only has three months to bring a claim after the detriment has been suffered or the termination of employment has occurred.  However, bearing in mind that whistleblowing situations often involve long running sagas of bullying and marginalisation, choosing the right moment to go can be even more problematic - but is crucial.  If you go at the wrong time then you might not be able to link back to perceived detriment and might instead be found to have resigned for other reasons, whether through a breakdown of trust and confidence (which might lead to an ordinary capped unfair dismissal award) or for some other reason entirely (which might result in no award).

Moreover, given that these situations can go on many years, affirmation is also a problem.  As happened in Kennington, applying for promotion or a redundancy scheme or receiving long term sick pay can amount to affirmation.  If the whistleblower is found to have affirmed the contract, all detriment beforehand will be disregarded.

What's the Tribunal like?

The Tribunal is the only forum to litigate these statutory rights.  Intended to be an easier experience for the layman, it is intended to be less formal and complex than the High Court. 

Because of this, it is established on a cost neutral basis i.e. usually the Tribunal makes no costs award.  This is in contrast to the position in the High Court where the loser normally pays the majority of the winner's costs (although the Court has full discretion to make some other order).  In the Tribunal, costs are only awarded where there has been some unreasonable conduct with respect to the litigation.  One of the continuing issues in the Ranson litigation is an application for costs owing to failures in the disclosure process.

What difficulties might a layman encounter in Tribunal?

While the fact the Tribunal is cost neutral enables claim to be brought without fear of a massive bill if things go wrong, it also means that, in the absence of legal aid for employment matters or any legal expense insurance, access to justice can be limited.  If the substantive claim is only relatively low, then there's no budget for legal advice as those costs will never be recovered.  Dr Ranson's legal team included solicitors and several barristers, which must have been very expensive.  That level of resources is unimaginable for the vast majority of Tribunal litigants, and many will need to be unrepresented at trial like Dr Kennington.

Yet the Tribunal is now, in many ways, much like the High Court.  The law is technical and complex and dealing with documents and cross-examination can make it very challenging for whistleblowers without legal advice.  The main Ranson decision, which deals only with liability and not with remedies or the fall-out from the disclosure failings, runs to 855 paragraphs and 202 pages.  6,000 documents were apparently considered plus another 1,000 pages of transcripts.  That's very difficult for the unrepresented claimant.

What procedural steps are needed?

First it is necessary to formulate the application to the Tribunal.  The Tribunal will look at these documents in detail.  Gone are the days of allowing parties to keep the application form and response pretty vague and dealing with matters primarily in their evidence.  

The Tribunal is likely to order the production of a Scott Schedule, which is a table setting out the protected disclosures claimed and the detriments that ensued.  In the Kennington case, there was also a strike-out application with the Respondent arguing that there was no case to answer.  Although subsequently withdrawn in that case, this can result in a mini-trial on the written evidence, which is another hoop for the worker to jump through and spend money on.

As a case approaches trial, written submissions may also be invited.  All in all, litigants need to be prepared for significant cost and expense where whistleblowing cases are fully defended.

What about disclosure?

It is likely that an order that the parties disclose all relevant documents will be made.  Any documents that are helpful or unhelpful to one of the issues must be provided and an appropriate search done.  In the Ranson case, two other things also occurred: a Data Protection Act Subject Access Request (which is a common feature of litigation these days) and verification of disclosed documents by affidavit.

And on to trial?

It is important that a litigant in person gets a suitable directions timetable ordered by the Tribunal that allows sufficient time for disclosure to be considered and witness statements to be prepared.   Dealing with trial can be very difficult for an unrepresented litigant who is invariably tempted to give evidence instead of asking questions in cross examination.  Equally, a trial can go on for many days.  This again makes it difficult for a claimant to bring a case because she may already be in new employment and unable to devote both preparation time and attendance time to the task in hand.

Concluding remarks?

All in all, the whistleblowing regime offers the employee the opportunity to be vindicated and appropriately compensated for standing up for what is right, which is a very difficult thing to do within an organisation that wants to shut you down.  However, it's a concern that the road is long, expensive and arduous, and cases that go to trial will continue to be the exception rather than the rule, owing to the difficulties outlined. 

Employers too need to understand the obligations they face by way of disclosure and that costs in defending the application will also be substantial.  These factors together encourage dialogue and settlement where appropriate. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.