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Whistleblowing and probationary employees

Posted by TonyBrownEmploymentSolicitor on November 4, 2013

Under whistleblowing legislation, an employee is deemed to be automatically unfairly dismissed if s/he is dismissed because s/he has raised a concern about wrongdoing within an organisation. The concern must be a genuine concern about a crime, risk to health & safety, failure to comply with a legal obligation, a miscarriage of justice or damage to the environment.

The advantage to employees of relying on whistleblowing as the reason for their dismissal is that there is no qualifying period of employment required to bring a claim nor a limit on the compensation they can be awarded if successful.

In the next case (brought before a change in the whistleblowing law: see Comment) the Claimant was dismissed during her probationary period. She alleged that she had been dismissed because she wrote a letter to the employer, which criticised the lack of consultation, shortcomings in the employer’s practices and identified non-compliance issues. The Claimant argued that this letter constituted a whistleblowing disclosure and claimed automatic unfair dismissal, not having the requisite continuity of employment to claim ordinary unfair dismissal. The ET refused to strike out the claim on the grounds that it had no reasonable prospect of succeeding.

The EAT dismissed the employer’s appeal against the strike out decision, saying that it was a matter for a full hearing whether the information in the Claimant’s letter, in the reasonable belief of the Claimant, tended to show that her employer had failed, was failing or was likely to fail to comply with any legal obligation, in particular to comply with its contractual obligations to her.

Comment

At the time this case was decided, the law was that a complaint by an employee of a breach of his/her own contract of employment came within whistleblowing legislation. However, Parliament has introduced into the legislation from 25 June 2013 a requirement that the worker must have a reasonable belief that the disclosure is made in the public interest. As a result, on the same facts as this case, it is unlikely that a dismissed employee whose complaint is about breach of his/her own employment contract, where there was no ‘public interest’, could rely on whistleblowing to overcome the lack of service required to bring an ordinary claim for unfair dismissal.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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