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Who is a whistleblower?

25 August 2010

Not every employee who makes any sort of complaint can claim they are a whistleblower. In fact, a worker has to comply with fairly strict requirements in order for his complaint to be classed as a disclosure protected by ‘whistleblowing’ legislation. The issue arose in a recent case involving an M&S employee who had leaked information to the national press, reports Willans’ Employment team.

One of these requirements is that the subject of the disclosure must fall into one of the listed categories, otherwise it will not be protected. However what amounts to a disclosure is not defined. In the recent case of Goode v Marks and Spencer plc the EAT held that expressing an opinion was not a disclosure.

The Facts

  • M&S had put forward proposals to change the company’s discretionary enhanced redundancy terms. Mr Goode commented to his line manager that the proposals were “disgusting”. The manager advised Goode to contact the employee representative body, which he did. (Voicing concern or an opinion, or making general remarks does not usually amount to ‘a disclosure’, so Mr Goode’s “disgusting” comment was not a disclosure. Had he said: “I think what the company is proposing is unlawful”, it may have been.)
  • The employee representative body eventually came to an agreement with M&S about the changes to be made. Following this Mr Goode e-mailed a letter to The Times newspaper stating that redundancy packages had been “slashed” and there was speculation that M&S would shortly be making compulsory redundancies.
  • Following a disciplinary procedure, Mr Goode was summarily dismissed for sending this email to the press. He argued that these more specific comments amounted to a disclosure and that he had been automatically unfairly dismissed.
  • However the Employment Appeal Tribunal upheld the earlier decision that Mr Goode had not been automatically unfairly dismissed for ‘blowing the whistle’. Employees are generally expected, at least initially, to make any disclosure to their employer rather than a third party. As a result, Mr Goode’s letter to The Times was not a disclosure, said the EAT.

Comments

The decision is likely to be particularly welcome in the present climate when employers may be facing negative reactions and allegations from employees over cost-cutting proposals. It is for the employee to show he has complied with the requirements of the legislation in order to be protected.

However, employers should at least be aware of the protection an employee gets if he has made a protected disclosure. It is unlawful for a worker to be victimised for making a disclosure and any dismissal is automatically unfair. In addition, employees will avoid the general rule that they must have a year’s service to claim unfair dismissal.

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