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Whistleblowing Solicitors Glasgow

The Glasgow Law Practice has handled claims for employees who "blew the whistle" – disclosed information to official bodies of wrong-doing within their companies. In each case, their employment situation then changed for the worse. When taken further, the Employment Tribunal has recognised the extra legal protection which should be given to the employees. Senior Solicitor Stephen Smith, who dealt with the cases, explains:

WHAT IS "WHISTLEBLOWING"?

It's a shorthand expression for a concept well-known in other countries but only recognised in UK law since 1999 – where an employee makes it known that something is seriously wrong. Pressure for the law to change came after inquiries into disasters such as the Clapham rail crash and Piper Alpha have found that employees often knew about safety issues, but failed to alert their employers, through fear that they would lose their jobs if they did. However, the new laws have grown in complexity since they were introduced, and there are concerns that they don't offer enough protection to genuine "whistle-blowers".

HOW DOES THE LAW WORK?

The law offers protection in two ways – it makes any sacking which is connected with the whistleblowing automatically unfair, and it also makes poor treatment which falls short of dismissal illegal. However, the law places the onus on the whistle-blower to prove his or her case with a number of hurdles in terms of evidence which have to be surmounted before a claim can succeed.

WHAT HAPPENS IF THE CLAIM SUCCEEDS?

As very few whistle-blowers wish to go back to work, the usual remedy is compensation for their lost wage, plus damages for what they have had to go through. Unlike other types of employment case, the compensation is uncapped. Research in 2010 found the average compensation payment to successful claimants was £113,667, with the highest payment being £3.8m. There are currently around 1,800 whistleblowing claims are made each year but with that figure rising annually, the cost to businesses if they fail to take the issue seriously can be enormous.

CAN ANYONE "BLOW THE WHISTLE"?

A lot of employment claims, such as unfair dismissal, can only be brought after two years' service, and some claims are not open to temporary or agency workers. These distinctions don't apply to whistleblowing claims, which can be brought at any time. However, there is a danger for employers here that the law can be abused, with employees sacked for legitimate reasons who don't have the required service artificially claiming they were let go because they have blown the whistle in relation to a trivial matter.

WHAT CAN THE SUBJECT OF THE WHISTLEBLOWING CLAIM BE?

The law recognises six categories, which are known as "qualifying disclosures." The information disclosed must tend to show that one of the following has occurred or is likely to occur: (i) a criminal offence, (ii) breach of a legal obligation, (iii) a miscarriage of justice, (iv) danger to the health and safety of any individual, (v) damage to the environment, or (vi) the deliberate concealment of information regarding any of the previous categories. But the way the law has been interpreted means that the disclosure must be a statement of fact – not reporting of a rumour or an allegation, which won't be strong enough.

WHAT IF THE EMPLOYEE DOESN'T KNOW FOR CERTAIN IF THE INFORMATION IS TRUE OR NOT?

The information doesn't have to be true – if it transpires after an investigation by the employer or other outside agency that it was incorrect, the employee may still be protected. It will depend if the disclosure is seen as being "in the public interest." Usually, this will include ensuring that employers comply with the law, protect the environment and adhere to their contractual obligations to staff, but it's a common argument in these cases that the employee has a second, ulterior motivation, of seeking to embarrass or put pressure on his boss or company. If the Tribunal agree, they can reduce the compensation to reflect this.

WHO DOES THE DISCLOSURE HAVE TO BE MADE TO?

Any internal disclosures will be protected, although the employee would always be advised to put this in written or e-mail form, rather than to leave at being made verbally. This is to avoid any dispute later on about what said. While the law encourages disclosures to be made internally first, it also recognises there are some circumstances where employees should be allowed to blow the whistle to external bodies, such as HMRC, the Health and Safety Executive, or various financial watchdogs, and still be protected. Going to the media, however, is more problematic – any payment for the story will mean legal protection is lost, and the employee will have to show the matter was "exceptionally serious" or evidence would have been destroyed if he or she had taken any other path.

WHAT IF MY EMPLOYER HAS A WHISTLEBLOWING POLICY?

Encouraging whistle-blowers to come forward should be in the interests of employers since this can uncover wrongdoing within the organisation, and therefore help prevent accidents, financial scandals, criminal offences and regulatory breaches. To protect their reputations, most organisations would prefer to deal with issues internally (although in financial services they may require to notify a regulatory body). Some larger organisations have introduced "hotlines" for this purpose, often managed by external companies to ensure consistency of treatment. If the company can show the employee has failed to go down this route, it may lead a Tribunal to question what their motive was.

WHAT IF MY CONTRACT SAYS I HAVE TO KEEP INFORMATION CONFIDENTIAL?

The whistleblowing law would override any attempt by an employer to discipline an employee for breach of contract. Even attempting or threatening to do so could give rise to a whistleblowing claim, as would suspending the employee. Other forms of "detriment", such as failing to offer promotion or giving unwanted tasks, have also been recognised by Tribunals as justifying compensation, including one case where a company gave a poor reference to a former employee who disclosed information after he left.

I'VE REPORTED SOMETHING WRONG AND NOW I AM BEING TREATED DIFFERENTLY BUT I CAN'T PROVE WHY – DO I HAVE A CASE?

This is the legal hurdle of "causation" and is often a key battleground in whistleblowing cases, with many claims failing because the employee cannot establish a link between their detriment or dismissal and their whistleblowing. Witness evidence is often crucial, with the Tribunal having to decide whether they believe the company's evidence about why an employee was treated in a certain way. In a high-profile case last year, Rolls-Royce was successful in defending a case brought by a senior engineer who was sacked after he claimed there was corruption and a cover-up. The Tribunal found that the company had no choice but to sack him after he refused to accept an internal investigation which found his claims were unsubstantiated.

HOW MUCH DOES IT COST TO BRING A CLAIM?

The legal fees charged by the Glasgow Law Practice for looking at a claim depend on individual factors such as the history and the amount of papers, but detailed advice can usually be given within an agreed budget of between £300 and £600. Insurance funding in the form of "legal cover" will usually meet the costs. Depending on income and savings, legal aid can also be obtained. The Tribunal now charges a fee of £250 to lodge a clam, but again this can be reduced depending on family circumstances, and we can advise on this.

WHAT ARE THE CHANCES OF THE CLAIM RESULTING IN A TRIBUNAL HEARING?

Approximately 70 per cent of whistleblowing claims are settled or withdrawn before evidence is heard. Whistleblowing claims can be expensive and time consuming to both pursue and to defend and there can be reputational consequences for both the claimant and employer, which often motivate settlement, usually achieved through a Settlement Agreement. Solicitors tend to take a lead role in negotiations.

Contact our Whistleblowing Lawyers in Glasgow

The Glasgow Law Practice acts regularly for both employees and employers in whistleblowing cases. We offer fixed rate packages so you know exactly how much you will pay at the outset. The Glasgow Law Practice's employment solicitors are Stephen Smith ([email protected]) and Louise Bain ([email protected])

 

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