Is Your Whistleblowing Policy Effective?

The recent judgment in Simmonds v Sutton Community Transport Charity Company (2304616/2019) is a reminder of the importance of having a dedicated whistleblowing policy which is not too limited in its terms.

Background

Mrs Simmonds was a Passenger Assistant for a charity which provides accessible transport to community groups in the London Borough of Sutton. Mrs Simmonds was responsible for assisting children with special educational needs and disabilities to and from school in the Respondent’s minibus. The normal minibus used for Mrs Simmonds’ commutes was a 16 person minibus with disability access capabilities. Without prior warning, Mrs Simmonds was required to use a 12 seater minibus which required passengers when accessing the vehicle, to step up higher than had been required with the 16 person minibus.

A number of health and safety issues arose from this change in minibus including; difficulty for some passengers in accessing the minibus because of the higher step, a more confined environment for the children to travel in and a sudden change in routine; these final two aspects causing a number of the children severe stress and anxiety, and causing some to become angry and lash out aggressively at Mrs Simmonds and other children.

Mrs Simmonds raised her concerns with the Respondent via voicemail and email. Her concerns were met with a short dismissive response which ultimately stated that Mrs Simmonds would have to put up with the 12 person minibus for two weeks as the 16 person minibus was not available, for ‘operational reasons’.

Following this response, Mrs Simmonds raised her concerns with a third party, the School Transport Liaison Teacher (the “Third Party”) at the school the children attended. This resulted in the Third Party feeling the need to complain to the Respondent about the unsuitability of the minibus. In the event, the Third Party was unable to make contact with the Respondent and instead spoke to the Council’s Transport Co-ordinator. A few days later, the Respondent dismissed Mrs Simmonds for gross misconduct for raising her “grievances against the company in the public arena without even engaging the company grievance procedure”. By a subsequent letter, the Respondent clarified to Mrs Simmonds that her dismissal was because she had communicated concerns about the Respondents operational issues outside of the company (and sought to also introduce another reason for her dismissal which was, in any event, not upheld by the Tribunal).

Applicable Law

The law concerning whistleblowing is contained within the Employment Rights Act 1996. Section 43G provides that disclosures made to people other than to your employer or the prescribed persons listed (police, regulator etc),  will only be a protected disclosure if the worker (i) reasonably believes that the information is substantially true, (ii) the disclosure is not made for personal gain, (iii) they have previously made substantially the same disclosure to their employer and (iv) in all the circumstances of the case, it is reasonable for the workers to make the disclosure.

In determining whether it is reasonable for the worker to make the disclosure, the Tribunal will consider:

(a) the identity of the person to whom the disclosure is made,

(b) the seriousness of the relevant failure,

(c) whether the relevant failure is continuing or is likely to occur in the future,

(d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,

(e) any action which the employer, has taken or might reasonably be expected to have taken as a result of the previous disclosure, and

(f) whether in making the disclosure to the employer the worker complied with any procedure the use of which was authorised by the employer.

Conclusion

One of the key issues for the Tribunal was whether or not it was reasonable for Mrs Simmonds to disclose information to the Third Party in the light of the factors listed above. If not, she would not have made a ‘protected’ disclosure and would not have been able to bring a whistleblowing claim.

The Tribunal concluded that the disclosure to the Third Party was reasonable and was therefore a ‘protected disclosure’, in part because the Tribunal found no evidence to show that the Employer had a dedicated whistleblowing policy which Mrs Simmonds should have followed. Furthermore, the staff handbook, relied upon by the Employer for the purposes of arguing that Mrs Simmonds should have raised a formal grievance first, before making any external disclosure to the Third Party, was kept in hardcopy in the Employer’s ‘staff crew room’, which Mrs Simmonds had only attended at interview stage for her position. At no point had she been provided with a copy of the staff handbook. On the facts of the case, the Tribunal determined that it was reasonable for Mrs Simmonds to have made the disclosure to the Third Party and found that she had been dismissed (unfairly) because she made that disclosure.

Comment

Preparing company policies can often feel like a thankless task with no apparent benefit or use. However, this is far from the case and employers should give due time and consideration to implementing thorough policies which set out expectations and requirements of employees. Had the Respondent in this case had a dedicated whistleblowing policy which made it clear that disclosure of information to certain third parties was not permitted and other avenues were available, the Tribunal may have determined that it was not reasonable for Mrs Simmonds to act as she did which would have meant that rather than being protected as a whistleblower, she would have been facing a misconduct allegation for the wrongful disclosure of confidential information.

It is also important to note, as was set out in one of our previous blogs that it is not sufficient to simply have written policies in place; employees must be given those policies (with proof of that on personnel records) and must be trained on relevant policies also.

If you have any queries about this topic, please contact Elliot Francis or any member of the Employment team.

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