Fiona Martin answers your questions on discrimination law and whistleblowing.
Q: My employee has raised a grievance about her manager, the finance director (FD). She says she is being bullied because she made a serious complaint concerning financial irregularities. She has only worked here for four months and I believe she is a troublemaker. Can I dismiss her?
FM: Employees who believe there is wrongdoing at work and want to report it are legally protected. So despite your suspicions, you must thoroughly and objectively investigate these allegations before doing anything.
A new Acas grievance procedure and Acas disciplinary procedure set out how grievance and disciplinary issues, including dismissal, should be handled. If you dismiss your employee, but have failed to follow proper procedures, she could bring a claim for unfair dismissal as there is no minimum length of service requirement for bringing a whistleblowing claim.
Q: What is whistleblowing?
FM: Whistleblowing is when an employee or worker provides certain types of
information, usually to an employer or regulator. This is also known as making a
disclosure in the public interest. The information has usually come to the employee’s attention in the course of their work.
Q: What information is covered?
FM: Whistleblowing employees - and other workers such as temporary staff and contractors - are protected from unfair dismissal where they reasonably believe their disclosure is in the public interest. To constitute public interest disclosure, the information must show one of the following:
- A criminal offence has been, is being, or is likely to be committed;
- A miscarriage of justice has occurred;
- An individual’s health and safety has been, is being, or is likely to be endangered;
- A person has failed, is failing, or is likely to fail to comply with a legal obligation in relation to negligence and duties of care obligations - this is defined in a wide sense.
Q: I think she is making up these claims because the FD recently told her she would not be promoted as she is part time. Is she still protected?
FM: This is clearly a complex case and a thorough investigation from the outset will be vital. Legal advice should also be sought.
To be protected, it must be reasonable for the whistleblowing employee to believe the facts of their disclosure.
In addition, the allegations must be made in good faith. Where an employee has an ulterior motive, such as personal antagonism towards a manager, they may not be protected from dismissal even if they reasonably believe the information is true.
If you do decide to dismiss on the basis the whistleblowing was not in good faith, you will need strong evidence. Even if you are successful in showing this is not a protected disclosure, your employee may be able to bring a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulation 2000. She might also be able to claim indirect sex discrimination in the workplace if she had to work part time due to childcare commitments. Neither of these claims require the obligatory one year’s service.
This article was published in The Argus, September 2009
The information in this article is provided as general guidance only. The law in this area is regularly subject to change, challenge and update. You should always check the up-to-date position and if appropriate seek further specialist advice.
