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Employers Warned Not To Ignore ‘Whistleblower’ Concerns

Employment Tribunal Victory For Meaby&Co

The recent Employment Tribunal (“ET”) decision in Dr B Radeljic v University of East London: 3201164/2020, in which Meaby&Co successfully represented the Claimant, illustrates the dangers of an employer refusing to address an employee’s grievances when those amounted to “protected disclosures”.

The factual matrix of the claims was:

The Claimant was a Reader of International Relations at the Respondent from 2008 to 2020. Academically, the status of “Reader” is one below that of “Professor”. In early 2019, he applied for professorship.

The promotion process was characterised by many significant shortcomings on behalf of the Respondent. When the Claimant expressed concern about  those procedural flaws, both in relation to his and other employees’ promotion applications, the Respondent’s officers, apparently due to their knowledge of the veracity of those and their potential to cause embarrassment to it, either tried to avoid addressing the concerns directly, or eventually, when the Claimant persisted in seeking the truth to his concerns, stopped engaging with him, presumably in the hope that he would give up and the complaints would disappear.

The Respondent did not reckon on the Claimant’s tenacity. He submitted a formal grievance detailing those procedural shortcomings, which the Respondent attempted to persuade him to have considered informally. The Respondent employed a number of sham considerations of his promotion application, eventually finding some spurious grounds on which it felt it could reject that. The Claimant appealed those, once again citing the procedural flaws. Again, the Respondent attempted to avoid addressing the allegation of the 2019/20 promotion round’s procedural flaws by focusing solely on the merits of his promotion application, and ignoring his wider concerns.

The Claimant engaged Meaby & Co, who corresponded with the Respondent, laying out his concerns exhaustively in the hope that it would address those. After further months of delay and obfuscation on behalf of the Respondent, the Claimant resigned from the Respondent, stating that its failure to address those concerns, over 9 months after the date he first raised those, was a fundamental breach of his contract of employment which entitled him to claim that he had been constructively dismissed.

The Claimant brought ET claims for:

  1. Constructive unfair dismissal;
  2. Automatic unfair dismissal for making a protected disclosure (“whistleblowing”);
  3. Detriment for making a protected disclosure; and
  4. Wrongful dismissal.

In an unusually conclusive Judgment, the ET agreed with him and upheld all his claims.

Lessons To Be Learned By Employers

While remedy has yet to be determined or agreed between the parties, a number of lessons can be learned by employers faced with allegations from an employee which could be construed as “whistleblowing”. If an employee makes “protected disclosures” (qualifying disclosures in the public interest), an employer should not ignore those. If it does, it could have the following results:

  1. An employee being entitled to claim that by not addressing his complaint, they are entitled to resign and claim that they have been constructively dismissed;
  2. In those circumstances, they are unlikely to have been paid their notice pay, and if not, will be entitled to make a claim for “wrongful dismissal”;
  3. If that is successful, the employee’s restrictive covenants fall away;
  4. The Compensatory cap for a successful “ordinary unfair dismissal” claim is currently £89,493 or 52 weeks’ salary, whichever is the lower. There is no such cap on a successful “automatic unfair dismissal” claim, which is the claim governing an employee’s dismissal for whistleblowing.  Although the ET will make a determination on how much to award a successful Claimant based on the Claimant’s losses, it can substantially exceed the Compensatory cap for ordinary unfair dismissal.
  5. The employer suffers significant reputational damage, both as a result of failing to address the original whistleblowing, and the subsequent negative publicity from the ET’s Judgment. It risks being perceived as an employer which does not value its employees or their views.

 

Meaby&Co have lawyers experienced in representing both claimants and respondents in ET claims, including whistleblowing.  Should you require further information on the above case or advice on its implications, please contact Chris Marshall on 0207 703 5034.