Managing the risk of a dismissed employee claiming they have whistleblown

Managing the risk of a dismissed employee claiming they have whistleblown

October 20, 2021

We’ve known for some time that employees who whistleblow are able to claim that they have made a protected disclosure. They are entitled not to suffer a detriment as a consequence of raising a protected disclosure about their workplace. The detriment might be the right not to be dismissed or to suffer a detriment such as loss of overtime, missing out on promotion just because they have raised a protected disclosure.

They are not allowed to raise a protected disclosure about the actual dismissal. But instead would need to be able to demonstrate that they had raised a protected disclosure before they were dismissed and that the two were linked.

The employee who doesn’t have 2 years’ service, which is not at all uncommon in Early Years is more likely to look at whether they can bring a claim for automatic unfair dismissal because they have made a protected disclosure. This is an issue for employers. Therefore one of the questions we will often ask our clients when they contact us as they are contemplating a dismissal, is whether the individual in question has recently whistleblown?

All is not lost if the employee has whistleblown. However it will be essential to separate out that which the employee blew the whistle about from the actions that led to the employee suffering a ‘detriment’.

Here’s our top tips for handling a situation in your Day Nursery, Pre-school or Out of School Club where you may be dismissing a whistleblower:

  1. Make sure the dismissal process is robust and handled fairly. Ensure you know why you are dismissing and which of the potentially fair reasons it falls under.
  2. Make sure the dismissal isn’t because of the whistleblowing and can you prove to a neutral persons satisfaction that there is no link.
  3. Make sure your record keeping is ‘on point’. Keep all the written evidence of how you have robustly investigated the issue, put the complaint to the individual for explanation, handled the process. You will not want to be embarrassed by lack of evidence to support your decision to dismiss.
  4. Make sure you can show that the actual whistleblowing has not made any difference in your decision to dismiss.

Always review your whistleblowing policy at least once a year. Make sure at induction that staff know not just how to raise a protected disclosure but also about how you take a very dim view if employees treat someone who has whistleblown less favourably. Also how bullying and harassment of whistleblowers will not be tolerated.

If you need any assistance with any aspect of managing employees in your Day Nursery, Pre-school or Out of School Club please do not hesitate to call us on 01527 909436.

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