Two recent Employment Tribunal decisions have made it
clear that employees who report the bullying or harassment of other
members of staff may qualify as whistleblowers in law, meaning that
they will have special protection from detriment and dismissal from
Day 1 of their employment.
What happened in these cases?
Case 1 – Cameron-Peck v Ethical Social Group Ltd and
others
The claimant was employed by Ethical Social Group as the CEO of
one of its two subsidiaries, Wndr Social. She was employed from 1
August 2021 until she resigned with immediate effect on 28 October
2021.
The claimant received complaints from staff members about
bullying by Ms Alexander, the CEO of Fluttr, the other subsidiary
company. On 3 September 2021, around one month into her employment,
the claimant sent a WhatsApp message to Mr Pullam, the Founder and
Group CEO, telling him about staff contacting her in tears about
the bullying and rudeness they had experienced and the way they had
been treated. On 4 September 2021, the claimant expanded on her
concerns in a telephone call with Mr Pullam. On 6 September 2021,
she sent an email to Mr Pullam explaining her concerns further,
setting out 19 numbered examples of Ms Alexander’s bullying
behaviour. She did not receive any response or follow-up to the
message, discussion or email.
On 15 October 2021, the claimant had a telephone conversation
with Mr Pullam, which she secretly recorded. She asked Mr Pullam
why there had been no follow-up to her complaints about the
bullying. Mr Pullam said they had discussed it and asked her what
further discussions she wanted. The claimant said nothing had been
done and that the behaviour had carried on. Mr Pullam asserted that
he did address the bully and he asked others who all said they had
not seen or experienced any bullying. After the phone call, the
claimant was removed from certain meetings, ostensibly so she did
not have to come into contact with Ms Alexander. However, this left
her feeling isolated and vulnerable.
On 18 October 2021, the claimant attended a video meeting with
the Chief People Officer and Chief Talent Officer of Ethical Social
Group. In the course of that discussion, the claimant revealed she
had recorded the telephone call with Mr Pullam. On 19 October 2021,
the claimant was removed from a company WhatsApp group and
suspended pending a disciplinary investigation. She was not told
why she had been suspended. The claimant resigned the next day
giving three months’ notice. The claimant was then invited to a
disciplinary hearing to be held on 5 November 2021. She was not
told of the allegations of misconduct that she had to answer. In
the meantime, a colleague told the claimant that she had been asked
to write a new HR policy stating that the making of covert
recordings constituted gross misconduct. The colleague said she
thought the claimant was being “set up” and that the
newly created policy was going to be used to dismiss the claimant
for gross misconduct.
On 28 October 2021, the claimant resigned with immediate effect.
She did not have sufficient service to bring an
“ordinary” unfair dismissal claim. However, she claimed
that had been automatically unfair dismissed for blowing the
whistle (for which no minimum period of service is required). At
the hearing, the Employment Tribunal had to decide whether the
claimant’s disclosures about bullying amounted to protected
disclosures, which would attract protection as a whistleblower.
Case 2 – Mysakowski v Broxborn Bottlers Ltd
The claimant was employed by Broxborn Bottlers Ltd between 7
November 2022 and 19 April 2023. On 13 April 2023, around five
months into his employment, he raised concerns with a manager about
an incident of sexual harassment he had witnessed. He said he had
seen a senior male manager massaging the shoulders and neck of a
junior female employee. The claimant said he understood that the
female employee was uncomfortable, and that he felt that it was
inappropriate conduct. When asked to name the individuals involved,
he refused on the basis that the female employee involved had asked
him not to. The manager told the claimant that the company could
not investigate the matter unless it knew who was involved. The
claimant said he did not feel he could name the individuals and
asked whether, instead, the company could issue a general reminder
to staff about appropriate conduct in the workplace.
The claimant’s employment was terminated on 19 April 2023.
He claimed that he had been automatically unfair dismissed for
blowing the whistle. A Preliminary Hearing was held to determine
whether the claimant had, in fact, made a protected disclosure.
What was decided?
In order for a disclosure to amount to a “protected
disclosure” it must pass the following test:
- The disclosure must be a disclosure of information, which means
it must convey facts and not just allegations. - The disclosure must relate to one of six defined types of
malpractice/wrongdoing and the worker must reasonably believe that
the information disclosed tended to show such malpractice. Included
in the six types of malpractice are reports about breaches of any
legal obligation or dangers to the health and safety of any
individual. - The worker must reasonably believe that the disclosure is in
the “public interest”. Public interest is not defined in
law, but relevant factors include the numbers of people whose
interests are affected, the nature of the interests affected, the
nature of the wrongdoing and the identity of the wrongdoer. - The disclosure must be made to one of a number of specified
persons and made in the right way.
The public interest test was introduced in 2013 and was intended
to prevent workers from claiming that grievances about breaches of
their own employment contracts were breaches of a legal
obligation capable of amounting to a protected disclosure. The
cases discussed in this article concerned grievances about breaches
of someone else’s employment contract or rights. In
both cases, the employers sought to argue that this meant the
disclosures were not in the “public interest” and,
therefore, were not protected disclosures.
In Cameron-Peck, the Employment Tribunal
approached the disclosures about the bullying of staff not as
disclosures about breaches of a legal obligation, but, rather, as
disclosures that tended to show that the health or safety of
individuals had been, was being or was likely to be endangered. The
fact that the claimant had explained how she and other employees
were upset by the bullying was sufficient to show this. The health
and safety of employees is an important matter and several staff
had been affected. As such, it was reasonable for the claimant to
have believed the disclosures were in the public interest. The
Tribunal concluded that the claimant’s disclosures about Ms
Alexander’s bullying passed the necessary tests and were
protected disclosures. The claimant went on to win her claim and
was awarded compensation of £185,000.
In Mysakowski, the Employment Tribunal
approached the disclosures as disclosures which tended to show a
failure to comply with a legal obligation, namely, obligations
under the Equality Act 2010. The Tribunal concluded that the
claimant believed that the information disclosed was in the public
interest and it was reasonable for him to have held that belief. It
noted that he had given evidence to the effect that he had heard
rumours about the senior male manager’s conduct towards female
employees and wanted to raise what he had witnessed to try to
protect others in the workplace. Given these findings, the Tribunal
concluded that the claimant made a protected disclosure, meaning
his claim may now proceed to a final hearing on the merits of his
claim.
What do these decisions mean for employers?
These decisions highlight that complaints about the mistreatment
of others may amount to protected disclosures attracting
whistleblowing protection. Although the complaints may, on their
face, concern individual employment relationships, they may still
engage matters of public interest.
As far as bullying is concerned, while there is no statutory
protection against bullying per se, it stands to reason
that bullying is going to harm the wellbeing of the victim and risk
their health and safety. Alternatively, it could be viewed as a
“breach of a legal obligation”, such as the Health and
Safety at Work Act 1974, or the implied contractual duty to take
reasonable care of an employee’s health and safety at work. The
fact that only one or two staff may have been affected will not
mean the disclosure is outside the public interest. Ultimately, it
will come down to what the employee reasonably believed at the time
of making disclosure, but it is not difficult to see how a
disclosure aimed at protecting people from a serial bully would be
enough to pass the test.
As far as harassment or other forms of discrimination are
concerned, this would represent a potential breach of the Equality
Act 2010. Depending on the circumstances, it could also be
something which risks health and safety and/or breaches health and
safety law. Again, the fact that a small number of staff are
affected (even just one, as in Mysakowski) will
not make a difference. It will likely be reasonable for an employee
who witnesses an act of discrimination or harassment from a senior
manager to say they believed that the disclosure was aimed at
protecting other staff from such treatment in the future.
Practically speaking, this means that employers in this
situation should consider dealing with such complaints under
internal whistleblowing procedures (where there is one) instead of,
or in addition to, an individual grievance procedure. For
organisations subject to the FCA’s and PRA’s whistleblowing
framework, this will mean, amongst other things, ensuring that the
confidentiality of the whistleblower is preserved, escalating the
concerns appropriately both internally and to the FCA or PRA,
providing appropriate feedback to the whistleblower and including
information about the matter in the annual report to the Board.
It is important to identify when an employee might acquire
whistleblowing protection. If a whistleblower is mistreated as a
result of having made a protected disclosure, they will be entitled
to bring a detriment claim seeking compensation for losses flowing
from that detriment and for injury to feelings. In the event that
they are dismissed, they will be entitled claim automatic unfair
dismissal from Day 1 of their employment and seek uncapped
compensation for losses flowing from the dismissal. Further, an
employee who has blown the whistle about discrimination or
harassment could also have a separate claim for victimisation under
the Equality Act 2010 if they are subjected to detrimental
treatment for having raised those concerns.
Cameron-Peck v Ethical Social Group Ltd
and others
Mysakowski v Broxborn Bottlers
Ltd
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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