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“One of my employees is becoming a bit of a troublemaker. He keeps complaining about safety issues in the workshop, alleging that I haven’t got the right equipment and that it is causing a health and safety risk. He is also generally negative about the company and his bad attitude is affecting other employees. He has only been here one year, so I think I might dismiss him, is that okay? I know you have to have two years before you can claim unfair dismissal.”
The employer is correct in that normal unfair dismissal rights don’t apply until two years’ service. In the situation described above, however, the risk is that the employee may bring a whistleblowing claim against the employer.
Knowledge of whistleblowing in the motor industry and in the wider economy is still relatively poor and many employers don’t fully understand that it may apply to them and the level of protection it may give employees.
Dismissal of an employee can be automatically unfair (with no required two year service criteria) if the reason or principal reason for the dismissal is because they have made “protected disclosures”, i.e. ‘blown the whistle’ in non-legal language.
There are essentially two main areas in which employees are protected:-
Whist the legislation has understandable and laudable aims, as can be seen in the news of late regarding the NHS, with the lifting of the unfair dismissal cap from one to two years it also means that some employees can exploit the rules and bring whistleblowing claims to avoid the statutory service criteria.
Employers should also be aware that there is no financial cap on compensation for whistleblowing claims, unlike normal unfair dismissal, so potentially the Tribunal awards can be large.
Types of Whistleblowing
The legislation in the UK is extremely wide and covers a wide variety of allegations relating to (for example) any breach of any legal obligation, danger to health & safety, allegations of criminal offences or cover-ups, damage to the environment or the deliberate concealing of information about any of these issues.
There are further dangers for employers in that:-
a) It doesn’t actually matter that the allegation made against the employer is true or not. All that matters is the reasonable belief of the employee making allegations.
b) Alleged wrongdoing can be past, present or future.
c) Since changes in the law a couple of years ago, it is no longer a defence for the employer that the disclosures are made in bad faith. That can be still be relevant to remedy (i.e. how much compensation the employee gets in a Tribunal) but not to whether or not the employer is liable in the first place.
In the above situation for example, if the employee genuinely believes there are health & safety issues in the workshop and he is dismissed because of raising those issues, then he would be able to bring a claim in the Tribunal and it may be difficult for the employer to defend the same. That would be the case even if there were other quite genuine capability or conduct issues with the employee.
Note, however, that there is a distinction in law between dismissal or treating less favourably because of the disclosure itself, and dismissing or treating less favourably because of conduct which may be linked to the disclosure, but is separate. In the above example, the employee’s conduct in being very negative about the employer may, for example, be distinguished from the making of the health & safety allegations themselves. Tribunals are however entitled to explore the evidence of the ‘real’ reasons for any of the employer’s treatment of the employee.
Employers are advised to treat whistleblowing seriously and explore the issues and document that they are addressing any concerns raised. You may consider issuing a separate whistleblowing policy to demonstrate that you do take the issue seriously. If an employee is raising real concerns, then clearly the employer should act upon and try to remedy the issues.
If an employee is trying to bring a whistleblowing allegation to gain statutory protection when they are simply a poor employee or guilty of other misconduct or capability, then an employer is well advised to lay a good paper trail of treating the concerns seriously and also of the real reasons it disciplines or dismisses the employee, so that they can defend their position in the Tribunal.
Andrew Macmillan, Solicitor, Motor Industry Legal Services