Employers are generally aware that disclosures being made to senior members of staff, to HR or during grievances may qualify as protected disclosures under whistleblowing legislation. However, potentially those who disclosures may be made to are a broader category than individuals within the employment of the employer. In Chase v Northern Housing Consortium & Anor the claimant argued that a disclosure made to an independent investigator, not employed by Northern Housing Consortium ("NHC"), was protected.
What does the law say?
The relevant legislation - the Employment Rights Act 1996 ("ERA") - confirms that if a qualifying disclosure is made to the worker's employer, it will be a protected disclosure for whistleblowing purposes. In addition, under ERA section 43C(2) a worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to someone other than his employer, is to be treated as having made the disclosure to his employer.
Background
The claimant was NCH's Procurement Director. She made multiple disclosures alleging non-compliance with procurement laws and potential misuse of public funds. She alleged that following those disclosures, which she said were not adequately responded to, she was bullied and harassed. This led to her taking sick leave due to anxiety. She also claimed that NCH's CEO took steps to force her resignation.
In late 2020, NCH appointed an external auditor to investigate the claimant's previous allegations of malpractice. During the course of the investigation the claimant made additional disclosures to the auditor. In January 2021 the CEO called the police reporting concerns about the behaviour of the claimant's husband towards the claimant. This further detrimentally impacted the relationship between the claimant and NCH and she resigned in March 2021.
Tribunal claim
The claimant brought a number of claims before an employment tribunal including disability discrimination, automatically unfair constructive dismissal and detriment on the grounds of having made protected disclosures. Her claim was plagued by hearing postponements, judicial ill health and a 9 month wait for a judgment that was subsequently described by the EAT as including "unreadable nonsense". In amongst that was a finding that a disclosure the claimant made to the external auditor was not a qualifying disclosure because the auditor had "no responsibility" within NCH. The claimant appealed.
EAT judgment
The Employment Appeal Tribunal ("EAT") upheld the claimant's appeal. This included on grounds relating to unreasonable delay and inadequate reasoning in the employment tribunal judgment, and a failure by the tribunal to consider part of the case that was pleaded. The EAT concluded these errors deprived the claimant of her right to a fair trial. As a consequence, the whole case is to be re-heard by a different tribunal. In respect of the whistleblowing issue, the EAT held that the employment tribunal had erred in finding the disclosure to the auditor was not protected because the auditor was external to NCH and had no responsibility to them.
The EAT also rejected an argument that it was not sufficient under ERA s43C(2) for a disclosure to become protected for it to be made under a procedure that was authorised for use by the employer. NCH had argued that the authorisation had to be specific to the making of disclosures. The EAT disagreed, highlighting that would mean an employer could choose to appoint an external investigator, not provide the specific authority being suggested by NCH, and thereby avoid disclosures qualifying as protected. Instead, in deciding whether a disclosure was protected by virtue of s43C(2), a tribunal should determine whether the procedure in question was one which either expressly or impliedly could be expected to be used by workers to raise protected disclosures. In the particular circumstances of this case, where it was existing protected disclosures that the external auditor was investigating, it was "not only foreseeable but highly likely" that the claimant and other witnesses may raise additional concerns.
Comment
This judgment provides helpful guidance on the application of ERA s43C(2), and when a disclosure made to an individual independent of the employer will be treated as having been made to the employer. While the case has been remitted to be reheard by a different employment tribunal, the findings of the EAT in relation to this point will need to be taken into account.
The law relating to whistleblowing has been scrutinised and criticised as being rigid and overly complex. Despite a Labour manifesto promise to strengthen workplace protections for whistleblowers and a recently published results of a 2023 review of the whistleblowing regime, it is not clear what if any reforms are to be made to it. In the meantime, this case is a reminder that employers need to stay alert to situations where protected disclosures may be made, including when that is to someone other than one of their own employees.
