The Employment Appeal Tribunal has ruled that whistleblowing disclosures may be protected where they are made to an external investigator appointed by the employer to investigate earlier complaints.
The Employment Rights Act 1996 provides protection for disclosures to a person other than the employer where these are made in accordance with a procedure whose use by the worker is authorised by the employer. The ruling clarifies that this protection extends beyond general whistleblowing mechanisms, such as employer-backed hotlines, and can cover one-off apppointments of external investigators.
In this case the employer had appointed an external auditor to investigate and report on the claimant's previous allegations of malpractice made to the employer; the claimant then made additional disclosures to the auditor, which she claimed were also protected. The EAT agreed, rejecting arguments that the required ‘authorisation' must expressly extend to the making of new qualifying disclosures to the external investigator.
The EAT stated that the question of whether a procedure is 'authorised' by the employer is one of fact for the tribunal, bearing in mind that the purpose of the provision is to ensure adequate protection for workers making disclosures which are in the public interest. The tribunal must determine whether a procedure established by the employer was one which either expressly, or impliedly, could be expected to be used by workers to raise protected disclosures. This was the case here: given the claimant's original concerns were that alleged misconduct had been ignored or downplayed by the employer and that insufficient measures had been taken to prevent the repetition of similar events, it was not only foreseeable but highly likely that the claimant and maybe others would not only repeat the previous disclosures to the investigator but also provide new information revealing related concerns or evidence of continuing issues.
The EAT considered that the same would apply where an employer engages counsel to conduct an inquiry into, and report back on, specific allegations of wrongdoing and a worker makes new allegations during the course of the investigation - where such a process is being properly used by the worker at the employer's suggestion or requirement, additional qualifying disclosures will be protected, whether or not counsel's terms of reference or instructions expressly provide for the receipt of additional disclosures.
Further, the Tribunal in this case had erred in adding a requirement for the disclosure to be made to someone with “responsibility within” the employer's organisation, given this would exclude all third parties and thereby deprive the provision of all effect.
(Chase v Northern Housing Consortium Ltd)
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