The past year has witnessed several UK employment law cases that may have implications for whistleblowers and their employers.
Here, we outline key highlights from several relevant cases.
Employees can be personally liable for detriment including dismissal
The Court of Appeal in Timis and Sage v Osipov confirmed that personal liability of a colleague for detriment they caused to a whistleblower colleague can extend to liability for dismissal.
This allows the whistleblower to recover compensation for losses flowing from dismissal where there has been a clear detrimental act by the colleague resulting in the whistleblower’s dismissal.
In a similar vein, the case of Malik v Cenkos Securities ruled that an individual must be personally motivated by the protected disclosure to be personally liable for detriment for a successful co-worker compensation claim.
…and it can extend beyond UK borders
Bamieh v EULX (Kosovo) and others considered the territorial reach of UK whistleblowing claims. It confirmed that a whistleblower can bring a detriment claim against overseas colleagues as well as their employer.
The case took into account the co-worker’s connection to the UK, the fact that they contracted under UK law and that they were representatives of the UK government.
The take away here is that there is extra territorial scope for personal liability of co-workers if there is a sufficient link to Great Britain and British employment law.
‘Context’ should be considered in relation to disclosures
The case of Kilraine v London Borough of Wandsworth considered what constitutes a “sufficient factual and specific” statement. The judgement confirmed that “context” should be taken into account when determining whether a statement provides sufficient information to show a “relevant failure”.
“Context” can include gesticulation and the individual’s conduct, and surrounding communications such as emails, telephone calls, informal comments etc.
This is an important case and employers should take note not to dismiss apparently vague statements, as context may be sufficient to ensure that the statement is considered a protected disclosure.
Claims can be made for post-termination financial losses, even when termination is lawful
Wilsons Solicitors LLP v Roberts held that a claim for compensation for post-termination financial losses could be brought – even in the event of lawful termination – provided the whistleblower could demonstrate such losses were attributable to pre-termination unlawful detrimental treatment.
The example in this case is that, if the unlawful victimisation of the whistleblower made his position untenable and led him to withdraw his labour, it can be argued that their resulting dismissal could be sufficient to allow for a case for compensation.
What’s in store for 2019?
While the above relates to key cases in the UK courts, whistleblowing laws across the globe continue to evolve at pace.
The EU Whistleblowing Directive, which is due to be passed in 2019, is likely to result in a large shift in how EU countries handle whistleblowing. As with any new major legislative change, cases are sure to follow as the new law is defined and interpreted.
Outside the EU, there is still a focus in many countries on updating and addressing anti-corruption legislation which in turn could see a change in perception of whistleblowing and is likely to result in an increase in case law.
Even within the UK, where relevant legislation has been in place for many years, new cases are likely to result in further clarification of the UK’s legal position throughout 2019.