How can you deal with a ‘whistleblower’ working in your employment? Is it right to dismiss them for disclosing information about other members of staff? Croner-i can help…
Workers who make ‘Protected Disclosures’, otherwise known as ‘Whistleblowing’, are protected from dismissal and/or suffering a detriment by the employer because they made a disclosure. However, for a disclosure to be ‘protected’ and afforded this protection it needs to fulfil certain statutory criteria.
Disclosure in a nursery setting
Julie managed a small nursery and recruited a very experienced childcare practitioner, Miriam. However, after just a few weeks it became clear that there were personality clashes with Miriam and other members of staff, so much so that they were refusing to work with her.
Part of the relationship issues were that Miriam would regularly criticise the working practices of other members of staff. In addition Miriam had approached Julie and informed her that the staff members in the room where she was working were not complying with the law regarding care provision, as the toilets were not checked regularly and there either wasn’t any, or not sufficient written records of the incidents that took place during the day in the room.
Miriam’s probationary period was coming to an end and because of the relationship issues and the impact this was having on the team, Julie wanted to inform Miriam she had not been successful in her probationary period and therefore dismissed. However, before Julie did so, she rang Croner’s employment law advisors and informed them of all the details.
When is a disclosure protected?
The Croner employment expert told Julie that Miriam informing her of staff failing to meet their legal obligations regarding toilet cleaning and record keeping, could fulfil the criteria of making a protected disclosure. They went on to explain that the criteria for a protected disclosure is:
- There is a disclosure of information;
- Which the worker reasonably believes is made in the public interest and tends to show;
- One or more of certain types of wrongdoing including criminal offences, failing to comply with legal obligations, miscarriages of justice, endangerment of health or safety, damage to the environment, or deliberate concealment of any of these things;
- Made in one of the protected manners e.g., to the worker’s employer (or in some circumstances to another individual responsible for the wrongdoing), or made in the course of obtaining legal advice, or in certain circumstances made to a Minister of the Crown, relevant regulatory authority or in exceptional circumstances to other bodies or persons, subject to a various conditions being satisfied.
The advisor went on to explain, that if Miriam made a claim to an Employment Tribunal and it was found that the issues Miriam raised were protected disclosures and if the reason or the principal reason for wanting to dismiss Miriam was because she had come to her with these issues, then it would likely be determined as ‘automatic’ unfair dismissal. Miriam would be able to bring a claim for this type of unfair dismissal as she would not be required to have the usual two-year service and the compensation for this type of claim is unlimited.
Therefore, it is always best practice for employers to seek advice when workers make what could be a protected disclosure. In addition, they should always ensure that when a worker makes a protected disclosure, that they do not then act in a way which is likely to be perceived as a detriment by the worker.
The Croner-i Early Years Toolkit for dot2dot provides further information and guidance on an employer’s rights to refuse a holiday request in addition to a model policy which is available to download. All dot2dot customers can access this by visiting https://d2d.loginservice.co.uk/and entering your registered email and password.
Don’t forget dot 2 dot members also have access to Croner’s team of employment law experts through their Helpline to assist you with this subject or any other HR issue. Simply call them for free on 0844 561 8111.
If you are not currently a dot2dot customer and are interested in a free trial of the Croner-I Early Years Toolkit then please do not hesitate to contact the dot2dot team on 01204 570 390.