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Section 2 Right not to suffer detriment

Broadly, workers have the right not to be disadvantaged or victimised by their employer because they have blown the whistle.

A. A. Right not to suffer detriment (s2 PIDA)

  1. – After section 47A of the 1996 Act there is inserted-

47B. –  Protected disclosure

  • A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

[(1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done –

  • by another worker of W’s employer in the course of that other worker’s employment, or
  • by an agent of W’s employer with the employer’s authority,

on the ground that W has made a protected disclosure.

(1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker’s employer.

(1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker’s employer

(1D) In proceedings against W’s employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker –

  • from doing that thing, or
  • from doing anything of that description.

(1E) A worker or agent of W’s employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if –

  • the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and
  • it is reasonable for the worker or agent to rely on the statement.

But this does not prevent the employer from being liable by reason of subsection (1B).]

  • …This section does not apply where –

(a) the worker is an employee, and

(b) the detriment in question amounts to dismissal (within the meaning of [Part X]).

(3)          For the purposes of this section, and of sections 48 and 49 so far as relating to

this section, "worker", "worker's contract", "employment" and "employer" have the extended meaning given by section 43K.]

Interpretation

This section contains the general right not to suffer detriment (short of dismissal) due to having blown the whistle (s47B(1) ERA). This right has been supplemented by an additional right for a whistleblower to bring a claim against an individual co-worker or agent of the employer who subjects them to a detriment (s47B(1A) ERA). No qualifying period of work is necessary in order to acquire this right; it can be enforced from day one of a worker’s employment (as defined by PIDA).

DEFINITIONS

“employee” : s.230(1) ERA

“protected disclosure” : s.1 PIDA, s.43A ERA

“worker” : s.1 PIDA, s.43K(1) ERA

“Detriment” is not defined in the ERA but the courts have followed a similar approach to that adopted in discrimination cases. Detriment is a familiar concept in discrimination law, meaning that a detriment will be established if a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment. It is not necessary for the worker to show that there was some physical or economic consequence flowing from the matters complained of (Shamoon v Chief Constable of the Royal Ulster Constabulary (Northern Ireland) [2003] UKHL 11, [2003] IRLR 285, [2003] ICR 337; per Lord Hope at [34]-[35]).

An employer may subject a worker to a detriment not only if he acts to the worker’s detriment (for example, offering less work to a casual worker, Almond v Alphabet Children’s Services; disciplining the whistleblower, Kay v Northumberland Healthcare NHS Trust; threatening to destroy the whistleblower, Bhatia v Sterlite Industries; re-advertising the whistleblower’s job, Brown v Welsh Refugee Council; withdrawing the promise of a permanent post, Bhadresa v SRA; or disclosing the whistleblower’s identity contrary to assurances, Carroll v Grt. Manchester County Fire Service), but also if he causes him detriment by deliberately failing to act.  Examples of the latter have included failing to investigate a concern (see A v B & C and Boughton v National Tyres) and failing to inform the whistleblower of the progress of the investigation (Knight v LB Harrow).

Detriment, PCAW submits, also includes the threat of unfavourable treatment.  As the Government spokesman (Hansard HL, 5 June 1998, col. 634) said, “An employee who has made a disclosure to his employer could be threatened with relocation to a remote branch of a company, for instance, where promotion prospects are poorer.  That kind of threat is a detriment and even though the worker can be assured that the employer could not lawfully carry out the threat, the fear of the threat may well amount to detrimental action.”  See also Mennell v Newell & Wright [1997] IRLR 519, in the context of a claim under s.104 ERA (protection against victimisation for asserting a statutory right).

Subsections 47B(1A)-(1E) ERA bring whistleblowing into line with discrimination law where there can be direct liability on a fellow worker and therefore vicarious liability on the employer. A worker has the right not to be subjected to a detriment on the ground of having made a protected disclosure either by a fellow worker (acting in the course of employment) or by an agent of the employer (acting with the employer’s authority) (s47B(1A) ERA). Where this happens, the act or failure to act in question is treated as also done by the employer (s47B(1B) ERA). This is so whether or not the act or omission occurred with the employer’s knowledge or approval (s47B(1C) ERA), though the employer has a statutory defence if it can show it took all reasonable steps to prevent that other worker from doing anything of that description.

The fellow worker may be liable for the detriment as well as the employer (s48(5)(b) ERA) but will not be liable if: (a) he or she did the thing in question in reliance on a statement by the employer that doing it did not contravene the Act; and (b) it was reasonable to rely on that statement (s47B(1E) ERA).

A fellow worker may be liable for a detriment which consists of the termination of a worker’s contract. In International Petroleum Ltd v Osipov UKEAT/0058/17 (19 July 2017, unreported), the claimant alleged several detriments suffered because of his whistleblowing, including in respect of his termination. The EAT held that the normal rule against dismissal detriment in s47B(2) ERA only applies to a dismissal where the respondent (for the unfair dismissal claim under Part X ERA) is the employer. The addition of ss47B(1A)-(E) ERA was designed to create a framework for liability of a fellow worker without restriction. This decision may give important protection to a whistleblower where the real driving force behind a worker’s contract termination was the malice of an individual manager (or managers) intent on getting rid of him because he had made a protected disclosure (because, for example, the disclosure in question caused significant difficulties for that particular manager(s)).

The act or deliberate failure to act must be done “on the ground that” the worker in question has made a protected disclosure.  This requires an analysis of the reason for the alleged wrongdoer’s act or omission and a simple “but for” test is insufficient (Harrow London Borough v Knight [2003] IRLR 140, EAT). The employer must show the ground on which any act, or deliberate failure to act, was done (i.e. that it was not because the claimant had done a protected act): s48(2) ERA.

In a detriment case, the causation ‘threshold’ is lower than in a claim for automatically unfair dismissal on grounds of whistleblowing (under s103A ERA). If the making of a protected disclosure materially influences the employer’s detrimental treatment of the whistleblower, that will be sufficient to establish liability (Fecitt v NHS Manchester [2012] IRLR 64).  The test is therefore akin to that adopted in discrimination claims under the Equality Act 2010.

Where a worker can show that he made a protected disclosure and was subjected to a detriment, it is for the employer to show the ground on which any relevant act, or failure to act, was done (s.48(2) ERA).  This means that if the employer fails to discharge the burden of proof, the tribunal may draw an adverse inference against it: see Secro Ltd v Dahou [2017] IRLR 81 and Kuzel v Roche Products Ltd [2008] IRLR 530.