The Whistleblowing Charity

The Whistleblowing Commission

Is the law protecting whistleblowers?

A review of PIDA claims

Foreword

elcome to Public Concern at Works latest report into the operation of the law that
protects whistleblowers in the UK, the Public Interest Disclosure Act 1998. In this report
we highlight the key trends arising from all employment tribunal decisions in 2011-2013
which involve whistleblowing.
This research comes at a time when whistleblowing continues to remain high on the public agenda
with countless headlines demonstrating that whistleblowers are too often ignored and vilified rather
than celebrated and championed.
At the same time we have seen a major report in the NHS and new regulatory rules in the financial
sector on whistleblowing as well as new guidance from government on the issue. Legislative reform
has taken place; including a new public interest test, the removal of the good faith test and vicarious
liability for employers for victimisation by co-workers. Regulators are also being asked to report to
parliament in relation to whistleblowing activity although the fine detail of this reform is yet to be
confirmed. All of this is welcome if it results in better outcomes for workers who speak truth to
power.
But there is also some bad news. In a year that marks the 800th anniversary of the Magna Carta it is
of great concern that one of the headlines from our research demonstrates that employment
tribunals are punishing claimants with costs at a far higher rate than they do respondents. Given the
fact that claimants are required to pay a fee to issue an employment tribunal claim and those who
are not represented fail in their cases more often, we are concerned that in whistleblowing cases the
odds are stacked to a great degree against workers and the cost of justice is far too high.
We highlight in this report the reforms we believe are necessary to improve matters and redress the
balance.
We do hope that you will find this report of interest and that you will continue to support the work
of this charity to promote and protect public interest whistleblowing.

Cathy James
Chief Executive
Public Concern at Work, the whistleblowing charity, aims to protect society by encouraging workplace
whistleblowing. We do this in three ways:
we operate a free, confidential advice line for workers with whistleblowing dilemmas,
we support organisations in establishing effective arrangements for staff to speak up, and
we inform public policy and campaign for legislative reform.
Please see our website for further details: www.pcaw.org.uk

Table of contents
Key findings

Methodology

An introduction to the law

Enterprise and Regulatory Reform Act 2013

The Whistleblowing Commission

The Governments Call for Evidence and the Small

Business, Enterprise and Employment Act 2015

2011-2013: A synopsis

Barriers to justice

15

Recommendations

18

Case studies

19

Key findings:
Access to justice

Many workers, including GPs, foster carers, non-executive directors, volunteers and
healthcare students, were denied protection under the law

Only 7% of claimants who brought interim relief claims were successful

Fifty-six percent (56%) of claimants do not have legal representation and this group
has much poorer success rates compared to those with legal representation

There was a 20% drop in the number of whistleblowing claims lodged with the
employment tribunal following the introduction of fees

Costs of over three quarters of a million pounds were ordered in cases involving a
whistleblowing claim

A comprehensive review of the operation of the law is made impossible by the

absence of an open register of claims

A profile of claimants

Sixty-six percent (66%) of claims are lodged by claimants in the private sector

Twenty-one percent (21%) of claims relate to the health and social care sectors

Discrimination/harassment was the most common concern in whistleblowing claims,

followed by concerns about work safety and financial malpractice

Ninety-one percent (91%) of whistleblowers first raise their concern internally. In

cases where whistleblowers raise their concern more than once, the employer is the
final recipient in 81% of cases

Over 7.3 million was awarded to whistleblowing claimants

Methodology

his report presents our findings of a review of employment tribunal judgments handed down
between 2011-2013 which involve a whistleblowing claim. We review these judgments in
order to monitor the effectiveness of the whistleblowing law, the Public Interest Disclosure
Act 1998, and use the findings to inform our public policy objectives.

The judgments we reviewed involved cases where an initial whistleblowing claim was advanced.1 In
a large proportion of these cases the whistleblowing claim was either withdrawn, struck out, settled,
or dismissed for some other reason. Sixty-eight percent (68%) of PIDA claims that were disposed
between 1 April 2010 and 31 April 2014 were withdrawn or settled through ACAS or by the parties .2
This reflects an ongoing pattern with PIDA cases the vast majority are withdrawn or settled. A
much smaller fraction of the cases have a detailed judgment on a whistleblowing claim.
Where possible we extracted information from these judgments, including the industry and sector
from which the claim arose; the type of hearing (case management, preliminary, interim or a full
hearing); whether the claimant had representation; the main cause of action (detriment, unfair
dismissal or constructive unfair dismissal); with whom the concern was initially and then finally
raised; the nature of the wrongdoing the whistleblower brought to light; the outcome of the case
(won on PIDA, won on other grounds, lost or withdrawn); the damages awarded; and whether costs
were ordered and the size of the order. This information was entered into a database and analysed
to identify trends and patterns. We also summarised cases that contained information regarding the
whistleblowing claim. We have included a selection of these cases at the end of this report (see
pages 19 25).
Acknowledgements
Thank you to our Legal Research Officer Sam Bereket who led this research project and drafted the
report.
We would also like to thank our legal research volunteers who assisted with this project and spent
many hours reading and analysing the judgments we received: Roxana Bota, Olivia Duffield, Giles
Ekblom, Janine Fess, Emily Hislop, Paul Hogarth, Hafsa Jabbar, Whitnii Levon, Evan MacDonald, Juhi
Mirchandani, Kerissa Naidoo and Laura Schofield.

As yet there is no online register of employment tribunal judgments and we are reliant on HM Courts and Tribunals
Service to provide us with these judgements
2
HM Courts and Tribunal Service and the Department of Trade and Industry (now the Department of Business, Innovation
and Skills, http://www.pcaw.org.uk/pida-statistics

An introduction to the law

he Public Interest Disclosure Act 1998 (PIDA) is the UKs whistleblower protection law.3 It was
introduced in response to a number of major disasters, scandals and corporate collapses in
the 1980s and 1990s including the Clapham Junction rail crash, the BCCI banking scandal and
the sinking of the Herald of Free Enterprise. Investigations carried out in the aftermath of
these disasters revealed that staff had been aware of risk or wrongdoing but were afraid to raise
their concern, ignored, or had not raised their concern in an effective way. The introduction of a law
to protect whistleblowers was a vital step toward changing the cultural perception that speaking
truth to power is wrong, futile or dangerous.
PIDA sets out a tiered disclosure regime, which protects workers who raise concerns with their
employer, with regulators and/or with a member of parliament.4 The legislation also recognises the
need for wider accountability, providing protection for individuals who make disclosures of
information externally with campaigning NGOs and with the media in certain circumstances.
Although the provision for wider accountability is an important component in the legislation, it is
rarely used in practice and most of the cases considered in this review involve whistleblowing
disclosures made to employers. The law also voids any provision in a contract or settlement
agreement purporting to prevent a worker from raising a public interest issue.5
PIDA protects workers and employees by giving them the right to bring a claim in the employment
tribunal (ET) for uncapped compensation if they suffer detriment or are dismissed for raising a
concern. PIDA provides an after the event remedy for whistleblowers who have been victimised
rather than a shield that prevents victimisation taking place. It does not require an employer or
regulator to look into the issue that has been raised. Rather, it looks to compensate the worker if
detriment or dismissal occurs as a result of a disclosure. PIDA is a backstop for when things go
wrong and not a substitute for an open and transparent workplace culture.
The protection provided by PIDA applies from the very beginning of employment. Unlike ordinary
unfair dismissal claims, there is no need for the employee to have worked for a qualifying period of
employment to have a right to a claim.6
Enterprise and Regulatory Reform Act 2013
The Enterprise and Regulatory Reform Act 2013 (ERRA) made a number of key changes to PIDA.7 It
introduced a public interest test to PIDA in order to close a perceived legal loophole created by
Parkins v Sodexho Ltd.8 In this case, it was held that workers were able to rely on PIDA if they suffer
detriment or dismissal for raising a concern about a breach of their own contract of employment.
The government concluded that this decision was not in keeping with the original aims of the
legislation, and so introduced a new test requiring workers to have a reasonable belief that the
disclosure is in the public interest.

Public Interest Disclosure Act 1998, http://www.legislation.gov.uk/ukpga/1998/23/contents

A change to the law introduced in 2014 means that all UK Members of Parliament (MPs) are prescribed persons under the
legislation
5
Section 43J states that: "(1) Any provision in an agreement to which this section applies is void in so far as it purports to
preclude the worker from making a protected disclosure."
6
This is currently 2 years under the Employment Rights Act 1996,
http://www.legislation.gov.uk/ukdsi/2012/9780111519974
7
Sections 17-20 of the Enterprise and Regulatory Reform Act 2013,
http://www.legislation.gov.uk/ukpga/2013/24/contents/enacted
8
Parkins v. Sodexho Ltd [2001] UKEAT 1239_00_2206, http://www.bailii.org/uk/cases/UKEAT/2001/1239_00_2206.html
4

The ERRA also changed the good faith test in PIDA. This test was originally intended as a safeguard
for employers against unworthy claims but had become a powerful weapon against whistleblowers.
In many cases whistleblowers found their claims dismissed on bad faith grounds, regardless of
whether the information raised was made with an honestly held belief and was true. In Street v
Derbyshire UWC the Court of Appeal (CA) held that where the dominant motive for making a
disclosure was unrelated to the public interest objectives of PIDA, the good faith test would not be
satisfied and the worker would lose the protection of the legislation.9 This was changed by a
provision in the ERRA so that a disclosure does not have to be made in good faith to be protected.
However, if a disclosure is found to have been made in bad faith the ET has a discretionary power to
reduce compensation by up to 25%.
The ERRA also extended whistleblowing protection to workers who have been bullied and harassed
by co-workers as a result of making a protected disclosure. This amendment followed the release of
the Francis Report into the poor care and high mortality rates at Mid Staffordshire NHS Foundation
Trust,10 and was intended to close the loophole that arose following the decision in NHS Manchester
v Fecitt & Ors.11 Under the amendment employers will be vicariously liable for workers and agents
who victimise whistleblowers. This new liability is subject to a defence if the employer has taken all
reasonable steps to prevent the victimisation. The amendment also introduced personal liability for
co-workers who victimise whistleblowers.
These changes to PIDA apply to disclosures made after 25 June 2013 and therefore few of the
judgments analysed in this report involved consideration of the new provisions introduced in the
ERRA.
The Whistleblowing Commission
In February 2013, we set up an independent Commission chaired by Lord Justice of Appeal Sir
Anthony Hooper which included representatives from a range of disciplines. The independent
Commission oversaw a public consultation and evidence gathering process to look at whistleblowing
from a number of angles including the effectiveness of PIDA.
In its report published in November 2013 the Commission concluded that PIDA is not working and
immediate change is needed to ensure whistleblowers have the confidence to speak out without
fear of adverse repercussions. The report made several recommendations for strengthening the
whistleblowing law in the UK.12 The primary recommendation was for the introduction of a statutory
Code of Practice for whistleblowing arrangements to assist employers, workers and their
representatives in addressing whistleblowing concerns. This Code could be taken into account by
courts when considering whistleblowing claims, and by regulators when assessing the effectiveness
of the whistleblowing arrangements of those that they regulate. The Commission also called for a
simplification of PIDA, extending PIDA protection to job applicants, foster carers and many other
groups of workers, a more expansive definition of wrongdoing and a strengthening of the antigagging provision in PIDA.

Street v Derbyshire Unemployed Workers' Centre [2004] EWCA Civ 964,

http://www.bailii.org/ew/cases/EWCA/Civ/2004/964.html
10
The Mid Staffordshire NHS Foundation Trust Public Inquiry, http://www.midstaffspublicinquiry.com/
11
In this case involving three nurses who claimed to have suffered because they blew the whistle, the CA found against the
nurses saying that even though the Trust could and should have done more to protect them, the decisions taken by the
Trust were not because of the whistleblowing. Significantly the CA found that employers are not vicariously liable for
retaliatory acts of other workers, NHS Manchester v Fecitt & Ors [2011] EWCA Civ 1190,
http://www.bailii.org/ew/cases/EWCA/Civ/2011/1190.html
12
The Whistleblowing Commissions Report on the effectiveness of existing arrangements for workplace whistleblowing in
the UK, http://www.pcaw.org.uk/files/WBC%20Report%20Final.pdf

Whistleblowing Framework Call for Evidence and the Small Business, Enterprise and Employment
Act 2015
In July 2013, the Government launched its own call for evidence on the effectiveness of the
whistleblowing legislation. Their response to the call for evidence was released in June 2014. It
proposed a number of reforms, including:

A duty on regulators to publish information about whistleblowing concerns raised with

them;
Improved guidance from the Government for those facing a whistleblowing dilemma and
help for businesses to deliver best practice;
Changing the scope of PIDA to include student nurses (but not other categories of workers,
such as non-executive directors, public appointments, volunteers, interns and those working
in the armed forces and national security services);
A review of the ET regulatory referral process (at present a claimant must provide consent
for their claim form to be sent to a regulator).

The duty on regulators was the only statutory measure within the proposals and formed part of the
Small Business, Enterprise and Employment Bill (SBEEB) that entered Parliament in October 2014.
SBEEB was also used as a vehicle to enact recommendations made by Sir Robert Francis in his report
into the state of whistleblowing in the National Health Service. The 2015 report entitled Freedom to
Speak Up? called on the Government to review the decision not to extend whistleblower protection
for job applicants.13 The report also called for the list of regulators prescribed under PIDA to be
extended to include all relevant national oversight, commissioning, scrutiny and training bodies
including NHS Protect, NHS England, NHS Clinical Commissioning Groups, Public Health England,
Healthwatch England, local Healthwatch, Health Education England, Local Education and Training
Boards and the Parliamentary and Health Service Ombudsman.
Finally, Sir Robert asked the Government to ensure that its proposal to widen the scope of
protection under the Employment Rights Act 1996 includes all students working towards a career in
healthcare.
In response, the Government included a provision in SBEEB which provides the Secretary of State
with a power through regulations to prohibit defined NHS employers from discriminating against a
job applicant because it appears to the NHS employer that the applicant has made a protected
disclosure.
The Small Business, Enterprise and Employment Act 2015 received Royal Assent in March 2015.14
Although Public Concern at Work welcomes these changes, we believe this was a missed opportunity
for a comprehensive reform of the law. The many problems identified by the Whistleblowing
Commission and echoed by this report into ET judgments (see pages 15 18) remain outstanding.

13

Report on the Freedom to Speak Up review, http://freedomtospeakup.org.uk/the-report/

Sections 148 and 149 of the Small Business, Enterprise and Employment Act 2015,
http://www.legislation.gov.uk/ukpga/2015/26/contents/enacted
14

2011-2013: A synopsis

e read a total of 2,969 judgments including both full and preliminary hearings. 1,260
were final judgments following a substantive hearing. Of these, 12% of cases were
successful on PIDA grounds, 26% were won on other grounds, and the remainder were
lost or struck out. This is in line with previous research on case outcomes.15

Damages
The total amount of damages awarded to successful claimants was over 7.3 million.16 This
represents the small number of claims that reach final hearing. As most claims are settled before this
stage, it must be the case that this figure represents but a fraction of the total amounts received in
settlement of PIDA claims out of court. The highest award was given in Best v Medical Marketing
International Group plc).17 In that case, a company director who was automatically unfairly dismissed
for raising concerns about his fellow directors activities was awarded 3.4 million in compensation
(see page 19 for a summary of this case).
Bad faith
We identified a significant rise in the number of cases where employers accused whistleblowers of
acting in bad faith. Bad faith was raised in 11% of cases, an increase of 7% from cases in 20092010.18
We have long argued that a whistleblowers motive should not matter providing the individual has a
genuinely held concern. The increase in the frequency of employers questioning whistleblowers
motives was a key reason for our campaign to remove the good faith test from the legislation. The
Government partially agreed with us on this issue and the law on good faith was changed in June
2013 (see page 7).
Interim relief
Fifty-seven of the judgments were for interim relief. Claimants were successful in only 7% of these
hearings.
Interim relief applications allow employees to bring a claim for re-instatement within 7 days of the
date of dismissal. Claimants must demonstrate that their claim has a good chance of success to
win at an interim relief hearing. If they succeed, the ET can order re-instatement or a continuation
order, whereby the employer must continue to pay the claimant until the claim has been
determined.
Claims by sector
PIDA protects a broad range of workers, across all industries and sectors. The majority of claimants
in the cases reviewed for this report were from the private sector (see graph 1).

15

Whistleblowing: beyond the law, pages 13-14, http://www.pcaw.org.uk/files/PCAW_Review_beyondthelaw.pdf

This figure includes awards claimants may have won for additional claims
17
Best v Medical Marketing International Group plc (in voluntary liquidation) [2013],
http://www.pcaw.org.uk/files/DW%20Best%20v%20Medical%20Marketing%20International%20Group%20Plc%20'in%20v
oluntary%20liquidation'.pdf
18
Ibid 15, pages 13-14
16

GRAPH 1: CASES BY SECTOR

4%

4%

Private
Public

26%

Voluntary
Unknown

66%

20%

Sector breakdown
The largest proportion of claims (21%) was brought by whistleblowers in the health and care sectors
(see graph 2). We see significant differences when we compare these figures with calls to our advice
line. Thirty-four percent of whistleblowing calls to our advice line stem from the health and care
sectors (see graph 3). A possible reason for this disparity is that our advice line is better promoted in
the health and care sectors and therefore we receive disproportionately more calls from these
sectors. Another is that many claims from the care sector may be low value and will either not be
issued or are settled quickly.

7%

6%

5%

4%

4%

4%

4%

3%

3%

3%

2%

2%

2%

1%

1%

LOCAL GOVERNMENT

UNKNOWN

FINANCIAL SERVICES

RETAIL

FOOD/BEVERAGE

TRANSPORT

CONSTRUCTION

CHARITABLE

LEISURE/HOSPITALITY

MANUFACTURING

LEGAL SERVICES

SCIENCE/TECHNOLOGY

UTILITIES

POLICE

CENTRAL
GOVERNMENT

OTHER

7%
EDUCATION

CARE

HEALTH

9%

12%

GRAPH 2: SECTOR BREAKDOWN

The number of PIDA claims from the education sector rose from 5% in 2009-2010 to 7% in 2011-13.19
The increase in the number of calls we received to our advice line over the same period from the
education sector has been more dramatic. The number of calls we received from individuals in the
education sector rose by 92%, from 199 calls in 2011 to 382 in 2013. Calls from the education sector
19

Ibid 15, pages 13-14

10

made up a fifth of the calls we received in 2013 and 2014. We have an ongoing concern about a lack
of coherence in the way schools are regulated. This has been compounded by a lack of local
authority oversight in the growing number of academies and free schools. This potentially has a role
to play in explaining the huge increase in the number of calls from the education sector.
We will continue to monitor whether the factors which appear to be driving up the number of
education calls to our advice line have a comparable effect on the number of claims lodged with the
ET.
The statistics also show that although only 1% of the whistleblowing calls we receive are from those
working in transport, the number of whistleblowing claims from the transport sector stood at 4% in
2011-13.

GRAPH 3: PIDA CASES AND ADVICE LINE

CALLS BY TOP TEN SECTORS IN 2011 -2013
17%

Whistleblowing calls to the advice line

6%
3%
CHARITABLE

4%

4%
2%
TRANSPORT

1%

4%
2%
FOOD/BEVERAGE

CONSTRUCTION

4%
3%
RETAIL

5%
5%
FINANCIAL
SERVICES

7%
7%
LOCAL
GOVERNMENT

7%
EDUCATION

CARE

HEALTH

9%

12%

16%

18%

PIDA cases

Types of wrongdoing
Discrimination/harassment was the most common concern (18%) in the cases we reviewed (see
graph 4). Work safety was the concern in 12% of cases and 9% of cases concerned financial
malpractice. This can be contrasted with our advice line where financial malpractice was the most
common concern during the same period (15%).
There is no open register of claims to the ET. This means it is not possible to identify the type of
wrongdoing that gave rise to a PIDA claim in cases that settle before trial.20 This makes it difficult to
interpret how the legislation operates in practice as there is no way of knowing whether there are
unreported incidents of wrongdoing or malpractice contained within these claims. We are calling on
this issue to be revisited. There should be a register of PIDA claims available to the public (or at a
minimum this should be available for research purposes) (see page 18).

20

Ibid 2, note that the vast majority of claims are settled

11

4%
ETHICAL

2%

4%
BULLYING

ABUSE IN CARE

5%
PUBLIC SAFETY

9%
OTHER

5%

9%
PRIVATE
EMPLOYMENT
RIGHTS

PATIENT SAFETY

9%
FINANCIAL
MALPRACTICE

WORK SAFETY

DISCRIMINATION/
HARASSMENT

MULTIPLE

12%

18%

23%

GRAPH 4: CASES BY TYPE OF

MALPRACTICE

Public interest test

Nine percent of the cases reviewed concerned breaches of private employment rights. It remains to
be seen whether the introduction of the public interest test will result in a reduction in the number
of these claims.
The public interest test was not interpreted in any of the cases we reviewed. However, we noted
some cases where the ET stated that if the public interest test had been in place it is possible the
judgment would not have gone in the claimants favour. For example, in Buckley and OConnell v
Chief Constable of Nottinghamshire Constabulary, a police officer claimed a sergeant had unfairly
questioned his professionalism, training qualifications and general ability, that the sergeant had
received preferential treatment and that he had suffered from stress as a result. The judge
commented that had the public interest test been in place, the disclosures might have failed the test
and therefore might not have qualified for protection.21
The Employment Appeal Tribunal (EAT) considered the public interest test for the first time in the
case of Chesterton Global v Nurmohamed. In this case the respondent had raised a concern that
between 2-3 million of actual costs and liabilities were being deliberately misstated, which affected
the earnings of over 100 senior managers, himself included. The EAT accepted that Nurmohamed
reasonably believed the disclosure was in the interest of the 100 managers. This was a sufficient
number of people for the disclosure to be in the public interest.22 We will continue to monitor how
the new public interest test is interpreted by the courts.

21

Buckley and OConnell v Chief Constable of Nottinghamshire Constabulary [2013],

http://www.pcaw.org.uk/files/D%20Buckley%20and%20S%20O'Connell%20v%20Chief%20Constable%20of%20Nottingham
shire%20Constabulary.pdf
22
Chersterton Global Ltd (t/a Chestertons) & Anor v Nurmohamed [2015] UKEAT 0335_14_0804,
http://www.bailii.org/uk/cases/UKEAT/2015/0335_14_0804.html

12

With whom did claimants raise their concerns?

There is a common misconception that whistleblowing necessarily involves the external disclosure of
information. In reality, 73% of claimants, in the cases we reviewed, initially raised their concern with
line management (see graph 5). Eighteen percent raised their concern with senior management. This
means that 9 out of 10 whistleblowers first raised their concern internally.
Only 2% of whistleblowers first raised their concern with a prescribed person. Prescribed persons
are principally regulators, such as the Care Quality Commission, the Financial Conduct Authority or
the Health and Safety Executive, but also include other persons and bodies that a worker may
approach outside their workplace to report malpractice or wrongdoing such as MPs or professional
bodies.

GRAPH 5: WITH WHOM WAS THE

CONCERN INITIALLY RAISED?
Manager, 73%
17%

Senior
Management/Executive, 17%
Other, 6%
Prescribed Person, 2%

6%

73%

2%
Multiple, 2%

2%

In the cases where the whistleblower raised their concern more than once, the final recipient of the
concern was senior management in 54% of cases (see graph 6). The concern was still raised within
the organisation in 81% of the cases. The claimant approached a prescribed person in 6% of cases.
The media, MPs and the police were the final recipients in 1% of cases respectively. This is in keeping
with previous statistics on the operation of the legislation.23

23

Where's whistleblowing now? 10 years of legal protection for whistleblowers, page 6,

http://www.pcaw.org.uk/files/PIDA_10year_Final_PDF.pdf

13

GRAPH 6: WITH WHOM WAS THE

CONCERN FINALLY RAISED?
Senior Management/Executive, 54%

27%

Manager, 27%
6%

Prescribed Person, 6%
6%

Other, 6%
Multiple, 4%

4%

Media, 1%
Police, 1%

1%
1%
54%
1%

MP, 1%

These findings support the results of our collaborative research project with the University of
Greenwich24, and the results of our bi-annual YouGov survey.25

24

The resulting report detailed the experiences of 1,000 whistleblowers and found that the vast majority of whistleblowers
only ever raise their concern internally, Whistleblowing: The Inside Story (May 2013),
http://www.pcaw.org.uk/files/Whistleblowing%20-%20the%20inside%20story%20FINAL.pdf
25
Our 2013 YouGov survey also found that 83% of workers said they would like to raise a concern about wrongdoing or
malpractice directly with their employers, http://www.pcaw.org.uk/files/PRYouGovFINAL%202013.pdf

14

Barriers to justice
Protection of workers

IDA applies to all workers as defined by section 230(3) of the Employment Rights Act 1996
(ERA 1996). Additionally, by virtue of section 43K of PIDA, a number of other categories of
worker are protected including contractors, agency workers and trainees.

We came across many cases where whistleblowers were denied protection because they did not fall
within PIDAs definition of worker, including GPs, foster carers, non-executive directors, and student
nurses and doctors.26
One of the recommendations of the Whistleblowing Commission called for an extension of the scope
of PIDA to reflect the Equality Act 2010 which provides more comprehensive protection for
workers.27 We would strongly agree with this recommendation. If the law is to fulfil its objective of
encouraging public interest whistleblowing, all groups of workers who may need to report
wrongdoing, risk or malpractice should be included within its scope.

Legal representation
In the cases we reviewed, 40% of claimants were self-represented, 44% had legal representation, 9%
were assisted by an unqualified representative and 4% were represented by friends or family.
Claimants were significantly more likely to be successful in their claim where they had legal
representation (see graph 7). Claimants who were represented were also more likely to withdraw
their claims.
It is worrying that representation is having such a significant impact on the outcome of cases as the
ET is supposed to be a litigant in person friendly environment. This reflects our experience on our
advice line that many litigants in person have difficulties in understanding the procedural aspects of
the ET system.

GRAPH 7: CASES BY OUTCOME

WON ON OTHER
GROUNDS

LOST

3%

2%

31%

23%

13%

9%

WON ON PIDA

53%

Represented litigants
68%

Self-represented litigants

WITHDRAWN

The situation has been exacerbated by significant changes to civil legal aid in England and Wales
which came into effect in 2013. These changes have meant that legal aid is no longer available in

26

There have also been significant decisions over the last two years which extend the remit of workers who can seek a
remedy under PIDA. See Clyde & Co LLP & Anor v van Winklehof (Rev 1) [2014] UKSC 32
http://www.bailii.org/uk/cases/UKSC/2014/32.html and Keppel Seghers UK Ltd v Hinds [2014] UKEAT 0019_14_2006 (20
June 2014) http://www.bailii.org/uk/cases/UKEAT/2014/0019_14_2006.html
27
Ibid 12, Recommendation 10

15

whistleblowing claims. During this time we have seen an increase in the number of whistleblowers
approaching our advice line in need of legal assistance and representation.
We argue that more assistance should be provided to claimants in whistleblowing cases. Cuts to
legal aid should also be reversed. Whistleblowing claims should be treated in the same way as
discrimination claims, and legal aid support should continue to be provided.
We also agree with the Whistleblowing Commissions recommendation that the Government
undertake research to assess whether there should be a state sponsored agency with responsibility
for whistleblowing.28

Costs
Our research has demonstrated a worrying increase in the number and size of costs ordered against
claimants. The total amount of costs ordered against claimants bringing PIDA claims was 753,135,
while for respondents this figure was much smaller at 183,992.29 These figures do not take into
account the many cases we came across that were referred to the county court because the size of
the costs sought exceeded the capped amount the ET can award.30
Many callers on our advice line ask about costs. When coupled with the introduction of fees in the
employment tribunal system, many individuals are deterred from seeking justice in the ET. If this
vital safety net is weakened, workers may be put off raising a concern in the first place. If we are to
overcome the sense that the law is not working, then there is an urgent need for a review of the
costs regime in the ET and for PIDA claims to be separately reviewed on public interest grounds
when costs orders are being considered.

Allegations
Many of the cases we reviewed confirmed our concern about the distinction drawn between
allegations and disclosures of information. This distinction arises from the case of Cavendish Munro
Professional Risk Management Ltd v Geduld.31 The EAT held that while a disclosure of information
was protected, making allegations did not qualify for protection. The judgment explained that
communicating information would, for example, be "the wards have not been cleaned for the past
two weeks. Yesterday, sharps were left lying around." In contrast with stating: "you are not
complying with Health and Safety requirements," which would be an allegation and not protected.
In one of the cases we read the claimants disclosures about being so overworked that she was
suffering stress and was unable to take breaks was held to be an allegation rather than a
disclosure of information.32 In another case it was held that the claimant had not conveyed
information when they made disclosures about risk assessments not being performed and failures
that were made in a redundancy process.33

28

Ibid 12, Recommendation 25

It was reported last year that in the case of Makanjuola v London Borough of Waltham Forest, among the cases we read
for this report, the ET awarded costs of 117,110.73 against Makanjuola subject to a detailed assessment. Unless the
detailed assessment reduces the costs award, it is thought that this will be the largest single costs award made by the ET,
http://www.bristows.com/newsletters/costs-in-the-employment-tribunal#sthash.a48B63L0.dpuf
30
For all cases presented on or after April 2012, the maximum amount of costs an ET can award has been increased from
10,000 to 20,000
31
Cavendish Munro Professional Risks Management Ltd v. Geduld (Rev 1) [2009] UKEAT 0195_09_0608,
http://www.bailii.org/uk/cases/UKEAT/2009/0195_09_0608.html
32
Delikatnaya v Roust Trading (Cyprus) Ltd t/a Russian Standard Vodka International, 2202004/2013
33
Gebremariam v Ethiopian Airlines Enterprise (t/a Ethiopian Airlines) 3301965/2011
29

16

The Whistleblowing Commission recommended that this distinction between an allegation and
information is artificial and undermines the purpose of the legislation which is to offer a remedy to
workers who suffer victimisation for raising a concern.34 Workers who are facing a dilemma about
whether to raise a concern should not also have to worry about whether their disclosure would fall
on the right side of the allegation/information distinction. We continue to call for this gap in the
legal protection to be remedied.

Fees
On 29 July 2013, fees were introduced in the ET and in the EAT. All claimants must now pay a fee to
issue a claim and to proceed to a hearing. Simple claims such as unlawful deductions from wages
cost 160 to issue and 230 for the case to be heard. More complex claims, such as discrimination
and whistleblowing claims, cost 250 to issue and 950 for the hearing.
It can be seen from the table below that this is having an impact on the number of whistleblowing
claims being issued. 2,744 PIDA claims were received and accepted by the ET during 2012-13. This
figure fell by almost 20% to 2,212 during 2013-14.

The number of applications made to an Employment Tribunal under the Public Interest Disclosure Act
(1998)35
Year
2010-2011
2011-2012
2012-2013
2013-2014

Number of PIDA Applications

2,200
2,500
2,744
2,212

We are concerned that the new fees regime does not take into account the public policy aims that
underpin PIDA. The purpose of the legislation is described in the preamble to the Act as being:
to protect individuals who make certain disclosures of information in the public interest; to allow
such individuals to bring action in respect of victimisation; and for connected purposes.
The key policy aim is to provide legal protection for individuals who witness wrongdoing, malpractice
or a danger in their workplace, so they can raise their concern at the earliest opportunity. Without
this vital backstop, whistleblowers may be discouraged from coming forward, and this could have
disastrous consequences for the public interest.
In our response to the Ministry of Justices consultation on Charging Fees in Employment Tribunals
and Employment Appeal Tribunal, we recommended that PIDA claims should be entirely exempt
from the fee structure or that there should be a means by which the fee can be suspended or waived
if it is in the public interest to pursue the claim. Alternatively, we recommended that the level of
fees charged should be reduced so as to avoid a chilling effect on whistleblowing in the future. We
maintain this opposition to the fees regime and call on the government to reconsider the
appropriateness of imposing fees on whistleblowing claims.

34
35

Ibid 12, Recommendation 19

Ibid 2

17

Recommendations
As a result of this research and the work of the Whistleblowing Commission there are
many areas in need of reform in the UKs whistleblowing legal framework. We set
these out below:
Recommendation 1: PIDA should be
simplified and should contain a nonexhaustive list of the categories of
wrongdoing, including gross waste or
mismanagement of funds and serious
misuse or abuse of authority

Recommendation 8: The decision of

Cavendish Munro Professional Risk
Management v Geduld should be
overturned so that the distinction between
allegations and information is removed
Recommendation 9: PIDA should be
amended to include obtaining advice from
trade unions

Recommendation 2: PIDA protection should

be extended to all job applicants, General
Practitioners in the health service,
regardless of their contractual
arrangements, volunteers and interns, nonexecutive directors, public appointments,
ministers of religion, foster carers and all
categories of workers listed under the
Equality Act 2010

Recommendation 10: There should be a

register of PIDA claims available to the
public (or at a minimum this should be
available for research purposes)
Recommendation 11: The Government
should reconsider the appropriateness of
imposing fees on whistleblowing cases

Recommendation 3: PIDA protection should

be extended to cover overseas workers
raising concerns about their UK employers
and subsidiaries

Recommendation 12: The Government

should undertake research to assess
whether there should be a state sponsored
agency with responsibility for
whistleblowing

Recommendation 4: Workers who are

wrongly identified as having made a
protected disclosure should be protected

Recommendation 13: Legal aid should be

available in whistleblowing claims and
whistleblowing claimants should be better
supported

Recommendation 5: The causation tests for

dismissal and detriment in PIDA should be
the same
Recommendation 6: The interim relief
provisions in PIDA should apply to
detriment as well as dismissal and the time
within which to bring an interim relief claim
should be extended

Recommendation 14: The Government

should introduce an online system of all ET
judgments in order to increase transparency
and knowledge of the law
Recommendation 15: PIDA claims should be
separately reviewed on public interest
grounds when costs orders are being
considered and the costs regime should be
reviewed

Recommendation 7: The anti-gagging

provision in Section 43J PIDA should be
amended to make it clearer and advice on
the impact of this provision should be given
to claimants upon settlement

18

Case studies

he cases we reviewed reinforce the importance of whistleblowing as a way of bringing to light

public interest concerns, and remind us of the price many whistleblowers pay for speaking
truth to power. The following is a selection of some of the cases we considered during the
course of our research for this report.

Ball; Gomez Soto v Improving Prospects

Ltd
Case No.: 1401349/2012; 1400386/2012

Gomez suffered a period of anxiety and was

very concerned about the organisations
behaviour and cover-up, so escalated the
concerns to the CQC and the local
safeguarding team. Gomez was dismissed a
couple of months later on spurious grounds.

The employers criticism of whistleblowers

was an attempt to deflect attention from
malpractice

The ET found that the respondent operated a

culture in which it was unwilling to accept
that there could be any legitimacy in criticisms
of their care of the service user. Gomez and
Balls treatment was designed to distract
attention away from the concern they raised.
Both Gomez and Ball were found to have
suffered detriment and automatic unfair
dismissal by virtue of making a protected
disclosure.

Gomez and Ball both worked as support

workers in the home of a man with learning
difficulties and challenging behaviour. The
respondent had won the contract to operate
the funded care package.
Gomez and Ball raised concerns regarding the
restraint techniques used on the service user
by a fellow support worker. In one instance,
Gomez witnessed the support worker
inappropriately restrain the service user by
lying on top of him and in another there were
reports that the support worker had been
involved in dragging the service user along the
floor.

Ball was awarded 35,764 in damages

including the sum of 31,500 for injury to
feelings. Gomez Soto was awarded 51,662 in
damages including 28,000 for injury to
feelings.

The support worker the two of them reported

was suspended but then returned to work the
next day.

Best v Medical Marketing International

Group Plc in voluntary liquidation Case No.:
1501248/2008

Gomez and Ball subsequently found

themselves under close scrutiny and had
tenuous allegations made against them.

The claimants unfair dismissal for

whistleblowing caused him considerable
reputational damage

Gomez was subjected to a disciplinary process

where she was kept in the dark about
allegations and was not allowed a union
representative. Although there were no
reported allegations of wrongdoing regarding
Gomezs behaviour, the organisation also
reported her to the CQC. Gomez was
eventually dismissed for gross misconduct.

Best was Executive Chairman and Group

Managing Director of the Medical Marketing
International Group Plc, where he became
concerned about the conduct of his fellow
Board Members. He suspected the directors
were depressing the price of shares in the
company by withholding the results of clinical
trials allowing the company's stock to be
bought at an artificially low price. Further, he
believed they were transferring assets from

19

the Respondent Company to subsidiaries and

leaving liabilities in the Respondent.

implemented. She was also concerned that

the service user was going to be attending the
same youth club at the same time as the
patient whom he had accused of sexual
assault. She sent an email expressing her
concerns to members of the multi-agency
team.

After raising these concerns with his

colleagues, Best was dismissed under the
guise of an irretrievable breakdown of trust
and confidence between him and the Board.
The ET concluded Best was dismissed because
he raised concerns and commented that the
mindset of the Respondent Company was to
rid themselves of Best whose pointed and
persistent concerns were causing unease. The
fact that there had been a breakdown in
relations between Best and the rest of the
Board, the ET added, was because the Board
refused to consider the concerns Best had
raised or address them with any seriousness.

Bhebne was suspended and redeployed for

sending the email on the grounds that it
breached confidentiality. There were also
complaints from others in the multi-agency
team about her professionalism. In the
meantime, the service users file could not be
located and it later transpired that Bhebne
had retained his notes to defend her position.
Bhebne sought advice from a legal consultant
who wrote a letter raising a grievance that she
had suffered a detriment for having made
protected disclosures. The letter from the
legal consultant was sent by post. It contained
sensitive patient information.

The ET found that Best's dismissal had caused

him substantial reputational damage in the
pharmaceutical and biomedical world.
Best was awarded 3,402,245.31.

The ET held that the email sent by Bhebne to

the multi-agency team was related to an
exceptionally serious concern and was
protected under section 43H of PIDA
notwithstanding the issue of patient
confidentiality. This was inextricably bound
with the protected disclosure. The ET noted
that although cases under section 43H are
rare, the reasonableness of making the
disclosure would be judged objectively, having
regard to the identity of the person to whom
the disclosure was made. In relation to the
serious nature of the disclosure, the ET
commented that they would be influenced by
the number of people affected and also the
nature of the harm.

Bhebhe v Birmingham Community

Healthcare NHS Trust
Case No.: 1304678/2011; 1311736/2012
A disclosure regarding an exceptionally serious
concern is protected (s.43H); a disclosure to an
employment consultant is protected (S.43D)
Bhebne was a senior nurse working for
Birmingham Community Healthcare NHS
Trust. She was part of a multi-agency team
looking after a service user with learning
disabilities.
An opportunity arose for the service user to
attend a residential weekend. A risk
assessment was signed by the organisers but
was not applied because they felt it was
unduly restrictive.

The ET ruled in favour of a wide interpretation

of section 43D of PIDA, which protects
workers who make a disclosure to a legal
adviser. It held that the legislation does cover
individuals who seek legal advice from an
employment consultant relating to their
disclosure.

The service user complained that he had been

sexually assaulted by another patient during
the weekend.
Bhebne became concerned that the risk
assessment for the weekend had not been

Bhebne was awarded 6,098, 6,000 of which

20

was for injury to feelings.

Remedy unknown
Champion v Leicester City Council
Case No.: 1950119/2010

Clinton v After Care (North West) Limited

Case No.: 2100739/2011

An employers failure to deal with a concern in

line with their whistleblowing policy
constitutes a detriment

An employers failure to respect a

whistleblowers confidentiality and
prevarication over addressing grievances
constitutes a detriment

Champion was a Planning Officer at Leicester

City Council and responsible for administering
the tree protection mechanisms. In March
2007, Champion recommended that an
application by a fellow employee to fell trees
be refused. The application was refused and a
Tree Replacement Notice (TRN) was served on
this employee in December 2008.

Clinton was employed as a residential

childcare worker in a care home. In July 2010,
she met with the managing director of the
home to tell him she had witnessed the
manager and the deputy manager taking
money out of petty cash. She also alleged that
undated taxi receipts were fabricated. The
managing director reported the matter to the
operations manager who in turn informed
those accused of the allegations.

In a subsequent meeting, Champion claimed

that this fellow employee had purchased the
land in question in 1999 after using his then
power to declare a Tree Preservation Order
(TPO) on the site and thereby render it
commercially worthless. From 2001-2007, he
began removing trees that were subject to
TPOs with the intention of developing the
land for residential purposes.

Clinton was then subjected to a series of

detriments. Her calls were ignored by
colleagues, she received conflicting
instructions from her managers and
accusations were made that she was
grooming young people in her care. This
resulted in sickness absence due to work
related stress and culminated in her
constructive unfair dismissal four months
after she raised her concern.

The accused employee did not comply with

the TRN and personally attacked Champion in
correspondence with colleagues and others.
Champion was kept in the dark for months
regarding the whistleblowing investigation,
resulting in him taking time off work with
work related stress. In August 2010, following
his lengthy absence, Champion was dismissed
on capability grounds.

The ET agreed that Clinton had been

subjected to detriment and unfairly dismissed
for whistleblowing. It was satisfied that the
detrimental acts amounted to a significant
breach going to the root of the contract and
that the motivation behind the acts were the
concerns raised by Clinton. The ET found that
the respondent failed to keep Clintons
concerns confidential and had prevaricated
over resolving the grievance lodged by her in
response to the way she had been treated.

Champion claimed he had been subjected to a

detriment and unfairly dismissed for making a
protected disclosure.
The ET ruled in Champions favour.
Champions illness was caused by his
exclusion from meetings and the removal of
his responsibilities as well as the failure of the
organisation to deal with the concern he
raised in line with their whistleblowing policy,
including their failure to inform Champion of
the outcome of the investigation.

Clinton was awarded 30,400 including

20,000 for injury to feelings.

21

Fulton v Austin Hughes t/a Camden Place

Dental Practice
Case No.: 2410615/2009

Garside v Darlington Primary Care Trust

Case No.: 2512351/2009
A disclosure to a professional body is
protected

A concern can be raised through an agent

Fulton was employed as a trainee dental
nurse at Camden Place Dental Practice. Three
weeks into her employment she suffered a
needlestick injury. That same day Fulton's
mother called the organisation on her
daughter's behalf to express concerns about
health and safety. Ten days later Fulton was
dismissed. The employer cited Fulton's
conduct and competence as the reason for
the dismissal.

Garside was a nurse working in Low Newton

prison for Darling Primary Care Trust. He was
known to be very diligent in ensuring
compliance with proper procedures. For
example, inmates had a tendency to pouch
medication they received in their mouths
instead of swallowing so that they could
smuggle the drugs onto other inmates.
Garside began to inspect this and started to
implement a new system of inspecting
inmates mouths after giving the medication.
Garside raised a concern regarding a doctor
who was prescribing a number of paracetamol
packets to an inmate known to be on suicide
risk. After raising the matter internally,
Garside raised the issue with the professional
body for doctors, the General Medical
Council.

Fulton and her family were concerned about

the risk that she had contracted an infectious
disease during the needle stick injury and
were dismayed by the employers passivity in
dealing with this issue. Fulton's mother
contacted the Health and Safety Executive
(HSE).
Fulton secured employment in another dental
practice but Camden Place Dental Practice
found out about her new employment and
informed them that a concern had been
raised with the HSE. Fulton was subsequently
dismissed by her new employer.

Around the same time a number of

complaints were made about Garside by
inmates and by his colleagues. An internal
investigation was launched and Garside was
suspended, disciplined and finally dismissed.
His dismissal was later retracted after some
issues with correct notice periods.

Fulton claimed she had been subjected to

several acts of detriment as a result of the
concerns raised by her mother. The ET found
in Fultons favour and held a concern can be
raised by an agent. It held that Fulton had
been subjected to a number of detriments
including her former employers decision to
inform her new employer of the concern
raised with the HSE.

Garside pursued a claim for detriment for

having blown the whistle. The ET found that
the claim for detriment based on the making
of a protected disclosure was well founded.
The ET noted that the complaints from the
inmates had to be seen in the light of Garside
being a meticulous nurse enforcing new,
stricter procedures which would make him
unpopular with inmates. The ET also found
that the internal investigation carried out by
the organisation lasted a long time, was
protracted and incompetently handled. The
concern raised by Garside was held to be a
very serious matter which the employer had
done its best to bury by attempting to eject
him on the basis of very doubtful grounds.

Remedy unknown.

Garside was awarded 58,052.50, 20,000 of

22

which was for injury to feelings.

dismissal was that he had made protected

disclosures.

Harlock v Mouchel Limited

Case No.: 1200984/2011

Remedy unknown.

Stress and depression suffered because an

employer does not deal with the concern
raised constitutes a detriment

Mehmet v Sainsbury's Supermarkets Ltd

Case No.: 2313194/2010
An employer is vicariously liable for an assault
on a whistleblower

Mouchel Limited was engaged in a 12 year

public/private partnership with the local
authority of the Borough of Milton Keynes
(The Council). The organisation had a team
whose key responsibility was to manage and
maintain the Councils bridges and highway
structures within budget.

Mehmet was working as a Night Shift

Assistant for the supermarket giant
Sainsburys. He was concerned that two of his
colleagues were stealing goods and raised this
with the Loss Prevention Manager. The
management team at Mehmets store was
informed of the allegations and that Mehmet
had raised the concern. An investigation was
launched but no action was taken against the
accused. There was an altercation between
Mehmet and one of those accused of the
theft. Mehmet punched this colleague in selfdefence after a verbal and physical attack.
Both Mehmet and the accused were
dismissed following a disciplinary process.

Harlock worked for Mouchel Limited as a

Bridge Inspector and found a number of
structural defects which he considered to be
serious safety issues. Harlock reported this to
management but rather than take action, the
employer accused Harlock of undermining
management.
Over the course of 2010, Harlock escalated his
concern to various people, including
representatives from the council, his local
councillor, the Mayor of the Council and his
MP. He informed his employer of his actions.

The ET held that Mehmet was attacked

because of the concern he raised regarding
the theft of goods and that the attack on him
was sufficiently closely connected with his
employment for the employer to be
vicariously liable.

Harlock lodged a formal grievance with his

employer. He was absent from work due to
illness for four months and was subsequently
made redundant.

Sainsbury's was ordered to re-engage

Mehmet and pay him 30,971.50, including
9,000 for injury to feelings.

Harlock claimed he had been subjected to

detriment as a result of his employers refusal
to deal with the concerns he had raised. As a
consequence, he suffered stress and
depression.
The ET found in favour of the claimant. The
organisation could not establish that it had
ignored the disclosures for any other reason
than that alleged by Harlock.
The ET also found that although there was a
redundancy situation at the time of Harlocks
dismissal, the principal reason for Harlocks

23

ODonnell v A2 Dominion Housing Group

Case No.: 2200934/2011

Packman v Retrograde Limited

Case No.: 1100693/2012

A workers external disclosure regarding a

child safeguarding matter is protected

A workers disclosure to his employer

regarding his van being overloaded is
protected

ODonnell worked as a Resettlement and

Support Officer for A2 Dominion Housing
Group, providing housing assistance to
individuals with disabilities in London. She
was providing support to two residents (X and
Y), the first of whom was being criminally
investigated for abusing the second residents
young daughter, Y2. The Crown Prosecution
Service dropped the case but the threat to Ys
daughter remained a concern.

Packman was employed as a driver for

Retrograde Limited, a transport company that
collects recyclable waste from charity shops.
Packman became concerned that his vehicle
was being loaded with excessive weight and
feared that he could lose his licence and be
subject to a fine if stopped by the police.
Packman texted his manager several times
informing him of the situation, asking for
advice and saying he was taking a safety risk
and breaking the law. His manager initially did
not believe him and said Packman should stop
working for them.

The organisation secured alternative

accommodation for X to keep him away from
Y2. ODonnell became aware that Xs new flat
was near to Y & Y2, and raised the matter
with her employer. ODonnell then discovered
X could look directly into Y2s bedroom due to
the proximity of his flat to Y. She raised this
with her employer and Ys social worker.

Packman was subsequently engaged on a

more casual basis where he would work on an
as required basis. While working under this
new agreement, Packman raised further
concerns with his manager about his van
being overloaded. His manager told him to
stop moaning and assured him that if
Packman was fined, the organisation would
pay for it.

ODonnell was informed that she was to be

suspended for her disclosure to the social
worker because she had circumvented
management in doing so and there were
concerns she had breached Xs confidentiality.
ODonnell suffered a mental breakdown in
response to the way she was treated and was
advised by her doctor to not go back to work
until the matter had been resolved. ODonnell
resigned after she was threatened with
further disciplinary action for her refusal to
return to work.

Packman expressed further concerns about

losing his licence. In January 2012, his
manager sent him a text informing him he
was dismissed and would not receive any
more work, stating no driver dictates what
they will and wont do.

The ET held that ODonnells claims for

detriment and unfair constructive dismissal
were well-founded. The employer could not
have had a reasonable belief that ODonnell
had breached Xs confidentiality because her
decision to approach the social worker with
the concern in question was reasonable given
the severity of the continuing danger to Y2.

The ET found that the dismissive responses to

his concerns, renegotiating his working
arrangement to a more casual basis and
having his work stopped after January 2012
were all detriments which were linked to the
fact that Packman had raised concerns about
the weight of his van.

ODonnell was awarded 81,965.50.

Packman was awarded 600 for accrued but

untaken holiday pay. A separate hearing was

24

set for a later date to determine further

remedy.

him over 20,000 in damages.

Thompson v Northern Balance Limited
Case No.: 1604809/2011

Sanderson v Audere Medical

Case No.: 1604809/2011

A disciplinary process constitutes a detriment

A disclosure to a legal adviser is protected
Thompson was employed as a service
engineer by Northern Balance Limited. He
raised health and safety concerns with his
manager about the incorrect use of slings for
hanging pans, after which he was subjected to
disciplinary action and issued with a final
written warning. Thompson soon after
resigned. Thompson pursued a claim for
detriment and automatic constructive unfair
dismissal.

Sanderson was employed as a field services

engineer for the respondent. He believed that
his employer was overcharging the NHS. The
respondents whistleblowing policy stated
that employees who raise a concern to an
outside entity, without having first raised their
concerns internally, may face disciplinary
action.
Sanderson informed his employer that he had
sought advice from Public Concern at Work
about his concerns. After a series of meetings,
Sanderson was suspended and dismissed as a
result of various allegations, the majority of
which relating to incidents which had
occurred months ago.

The ET held that the respondent had behaved

unreasonably in disciplining Thompson on
trumped up charges and that this was in
retaliation to the concern he had raised. The
preparation of a compromise agreement and
a final written warning in advance of the
conclusion of the disciplinary meeting was
taken by the ET as further evidence that the
employers actions were unfair and their
behaviour amounted to a repudiatory breach
of Thompsons employment contract which
amounted to constructive unfair dismissal.

Sanderson claimed that he had been

dismissed for having made a protected
disclosure to a legal adviser (s.43 (D)) (Public
Concern at Work).
The ET upheld Sandersons claim and awarded

Thompson was awarded 30,000.

25

The Whistleblowing Commission

Public Concern at Work

3rd Floor, Bank Chambers 6-10 Borough High Street London SE1 9QQ
Tel: 020 7404 6609 (advice line) Tel: 020 3117 2520 (other enquiries)
Fax: 020 7403 8823 Email: whistle@pcaw.org.uk
www.pcaw.org.uk
VAT no 626 7725 17
Registered charity number 1025557
Company registered in England 2849833