Automatically Unfair – the risk of the whistleblower

Background

From time to time we hear of situations where an employer is frustrated by the actions of an employee and seeks to address through termination of employment. Where the employee has under two years service or is in the probationary period, it is often mistakenly believed that there is no risk. Sadly one of the greatest risks in a regulated sector is the risk of the whistleblower.

Being dismissed because you have made a protected disclosure or whistleblowing could be deemed to be automatically unfair, meaning the employee doesn’t need 2 years service to bring a claim to an Employment Tribunal.

Other examples of automatic unfair reasons

Other examples of reasons where it would be classed as automatically unfair include any reason connected to:

• Pregnancy, including all reasons relating to maternity
• Taking or seeking to take leave for family reasons, including statutory paternity leave, adoption leave or shared parental leave
• Taking or seeking to take leave for family emergencies or taking time off to care for dependants
• Acting as an employee representative
• Acting as a trade union representative
• Acting as an occupational pension scheme trustee
• Joining or not joining a trade union
• For taking part in protected industrial action
• Being a part-time or fixed-term employee
• Pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage
• For asserting, or trying to assert, a statutory right
• For undertaking jury service
• For making a protected disclosure, i.e; whistleblowing
• For taking action at work on health and safety grounds

Managing these dismissals

Where considering the dismissal of someone who has made a protected disclosure you would want to ensure you do not make the connection between the disclosure and the employee. If they tell you they made the disclosure, or they tell others and they tell you, you know!

Secondly you would to be able to seperate out the issues. We would want to be sure that you have conducted a fair process and that any dismissal is a reasonable response. For example if you have an employee who is repeated warned about their conduct and you have followed a fair process any assertion by them that they are being dismissed because of a protected disclosure is less risky. Another example could be an employee who commits an act of gross misconduct, again if following a fair and robust process it was decided to terminate the employment, it is less likely that their previous disclosure will be able to be demonstrated as the reason for the termination.

Stating in emails that you feel that an employee is the reason that you have had Ofsted out and that you want them to go is a really bad idea! Subject Access Request anyone?

If you need any assistance managing your response to an anonymous complaint to Ofsted that you feel has come from a current employee please seek professional, qualified advice before any action. You can reach us on 01527 909436.