Employers breathed a bit of a sigh of relief when the whistleblowing legislation was tightened up in 2013 so that there had to be a “public interest” element to a complaint. Until this point, employees were able to complain about a breach of a legal obligation in relation to their own employment relationships with their employers which rather flew in the face of the Public Interest Disclosure Act.
But employers beware: now the first case on what is meant by “in the public interest” has come out of the Employment Appeal Tribunal and this is not good news for the employer. This case involved a complaint by an employee about his employer, a private limited company, having manipulated its figures which impacted on his entitlement to commission. The EAT however found that the employee believed his complaint actually addressed not only his own interests but those of around 100 of his fellow employees, and that was seen by the EAT to be enough people to meet the public interest test.
So, having had the scope tightened in 2013, it has now been expanded again as employees are likely to try to frame their complaints in such a way that they encompass other colleagues as well. It remains to be seen however how many employees are considered to be “in the public interest” in each case.
What should you do?
Of course you need to investigate the complaint, that goes without saying.
But when it comes to dismissing an employee, you should ensure that you have clear evidence to show that you had a fair reason to dismiss.
The same will apply to other actions you might wish to take, such as considering promotion, or selecting for redundancy or instigating disciplinary proceedings.
And finally, just a reminder – an employee does not need any qualifying service to bring a whistleblowing claim so tread carefully when dismissing employees with less than 2 years’ service. You might think you are safe, but you may not be.