Employment Update: Whistleblowers

03 December 2008

Employment Group

Protection for ‘whistleblowers’ exposing wrongdoing by others

In Hibbins v Hesters Way Neighbourhood Project, the employee worked as a tutor at a community centre. From descriptions put out in the local press, she thought one of her students was a man being looked for by the police investigating a rape. She contacted the police. This resulted in the police asking if they could, in effect, 'stake out' the community centre and catch him next time he came there.

Her employer was annoyed about this. Relations deteriorated and ultimately she resigned. She wanted to bring a claim of detriment for making a 'protected disclosure' under Sections 43A-M of the Employment Rights Act 1996. The employment tribunal considered that she could not, because she had not exposed any 'fault' or 'wrongdoing' by the employer. The EAT says that this is wrong. The employee can suffer a detriment at the hands of their employer - and so can use the protected disclosure regime - for exposing wrongdoing by anyone, not just the employer. The Act talks about ‘the conduct of a person other than the employer’ and the law should always strive to provide protection from discrimination rather than to deny it.

Point to note –

  • As the EAT noted in this case, there is an obvious case where this situation might arise – where wrongdoing by a customer or client comes to the attention of the employee but where he or she may be vulnerable to retribution from the employer for disclosing it as the employer fears that it may lose the customer’s business as a result. A similar situation may arise where the employee is employed by a holding or service company and ‘blows the whistle’ on market abuse or fraud within the group of companies but which is not actually being perpetrated by the company which is his or her employer.