Defending whistleblowing claims in the Education sector

As specialist employment lawyers practising in England and Wales, a significant portion of our work involves defending whistleblowing claims for education sector clients. They are often brought with or on the back of unfair dismissal and discrimination claims. These  whistleblowing claims often entail complex legal issues, and usually revolve around allegations of whistleblowing detriment, dismissal from employment, and harassment. In this article, I share the strategies and considerations involved in defending these claims, while also addressing the concept of automatic unfair dismissal and the implications of uncapped compensation awards from employment tribunals.

Understanding whistleblowing and protected disclosures

Whistleblowing involves employees disclosing information about wrongdoing within their organisation. The Public Interest Disclosure Act 1998 (PIDA) protects these employees, provided their disclosures meet certain criteria. For a disclosure to be protected, it must relate to specific categories of wrongdoing, such as criminal offences, health and safety risks, environmental damage, or a miscarriage of justice, and it must be made in the public interest. The employee must have a reasonable belief that the wrongdoing has occurred or is likely to and that it is in the public interest.

Defending whistleblowing detriment claims

Detriment claims arise when an employee alleges that they have been subjected to negative treatment, short of dismissal, as a result of making a protected disclosure. In defending such claims, it is crucial to establish that the alleged detriment was not linked to the whistleblowing. This involves demonstrating a legitimate, non-retaliatory reason for the actions taken against the employee.

So what are the key strategies to be deployed in heading off these sorts of claims?

1. Documented evidence: We find that it is always worth an employer maintaining thorough records of the employee’s performance, conduct, and the reasons for any adverse actions. Clear documentation can provide a robust defence against claims that the detriment was linked to whistleblowing
2. Consistent treatment: We look for evidence from our employer clients that employees are treated consistently, regardless of any protected disclosures they may have made. This consistency can help refute claims of retaliatory detriment
3. Independent investigations: An employer who takes the whistleblowing disclosure seriously will have conducted an independent investigation into the alleged wrongdoing, to establish if there has been any and report back to the employee with the outcome. This helps to establish that the actions taken (if any in relation to the employee’s poor performance (for example) are based on objective findings rather than retaliatory motives.

Defending whistleblowing dismissal claims

Whistleblowing dismissal claims occur when an employee asserts that they were dismissed primarily because they made a protected disclosure. Such dismissals are automatically unfair under PIDA, without the requirement to clock up 2 years continuous employment. Defending these claims requires proving that the dismissal was for a fair reason unrelated to the whistleblowing.

So what are the key strategies to be deployed in defending these sorts of claims?

1. Referring to clear policies and procedures: Organisations that have clear policies and procedures for handling whistleblowing disclosures, are better placed to defend such whistleblowing automatic unfair dismissal claims. These should outline the steps for reporting and investigating concerns, providing a structured approach that supports fair treatment
2. Embracing and promoting fair process: we look for evidence that our clients have adhered to fair and transparent dismissal processes, including providing the employee with an opportunity to respond to allegations at a fair hearing and ensuring decisions are based on substantial evidence, after careful review and thought before dismissal
3. Providing alternative explanations: Presenting alternative, credible reasons for the dismissal, that might include evidence of poor performance, that has been addressed, or evidence of misconduct, or a genuine job or location redundancy, provides the best defence to automatic unfair dismissal claims for whistleblowing. Provided the non-whistleblowing related dismissal is for reasons that are well-documented and justified objectively.

Defending whistleblowing harassment claims

Harassment claims in the context of whistleblowing involve allegations that the employee was subjected to hostile or intimidating behaviour because of their protected disclosure. Defending against these claims involves demonstrating that the behaviour in question was not linked to the whistleblowing. This is not easy, because of the nature of harassment which can take many forms, from marginalisation to adverse remarks that have the potential to cause offence.

So what are the key strategies to be deployed in defending these sorts of claims?

1. Showing that your organisation has an anti-harassment policy is good start: They should include clear definitions of unacceptable behaviour constituting harassment and procedures for reporting and addressing complaints
2. Training and awareness: Showing that your organisation has provided regular training for staff and management on the importance of preventing harassment, particularly in the context of whistleblowing; with full explanation of the types of protected disclosures and what constitutes ‘in the public interest’ is essential. This can help create a culture of respect and accountability
3. Demonstrating prompt action: Taking prompt and appropriate action in response to harassment complaints counts. Investigating thoroughly and addressing any issues identified, demonstrating a commitment to a safe and respectful working environment is helpful.

Automatic unfair dismissal and uncapped compensation

Under PIDA, dismissals for making a protected disclosure are automatically unfair. This means that employees do not need the usual two years’ service to bring a claim, and employers cannot rely on the usual fair dismissal reasons from capability to conduct to redundancy. If an employment tribunal finds that the primary reason for dismissal was the protected disclosure, the dismissal will be deemed automatically unfair. Moreover, compensation for whistleblowing claims is uncapped. Unlike ordinary unfair dismissal claims, where compensation is subject to statutory limits, whistleblowing claims can result in substantial awards. Compensation can include loss of earnings, future loss of earnings, and damages for injury to feelings, occasioned by the unlawful whistleblowing related treatment.

Conclusion

Defending whistleblowing claims in the education sector requires a thorough understanding of the legal framework and a proactive approach to managing risk. By maintaining clear policies, thorough documentation, and fair processes, we can help education employers effectively defend against claims of whistleblowing detriment, dismissal, and harassment. Understanding the implications of automatic unfair dismissal and uncapped compensation is crucial for navigating these complex cases and minimising potential liabilities. If you seek our specialist legal advice at an early stage we can help to ensure the best possible outcome in defending whistleblowing claims.