Why Employers Should Pay Attention to Whistleblowing Claims
The recent Employment Appeal Tribunal (EAT) decision in Treadwell v Barton Turns Development Ltd is a significant case that highlights the risks for employers and individual managers when handling whistleblowing complaints. If you’re a business owner, director, or manager, this case highlights the importance of understanding the legal landscape to avoid potentially costly mistakes.
Miss Treadwell’s Role and Employment
Miss Treadwell was employed as an events manager by Barton Turns Development Ltd, a position she held for just five months before her dismissal. During her time with the company, she became concerned about certain issues in her workplace, which led to her making what are known as “protected disclosures.”
What Are Protected Disclosures?
Protected disclosures, commonly referred to as whistleblowing, occur when an employee reports certain types of wrongdoing or illegal activities within a company. These can include health and safety breaches, financial fraud, or breaches of legal obligations. The law protects employees who make such disclosures, meaning they should not face retaliation—like being dismissed—for raising these concerns.
The Issues Reported by Miss Treadwell
Miss Treadwell reported two significant issues to her employer. The first involved concerns about the state of the property where she worked, which she believed could have serious implications for health and safety. The second issue was a report she made to her director, Ms. Wyss, about what she perceived to be a threat made against her by another employee. Treadwell felt that this threat was not taken seriously by Ms. Wyss, which added to her concerns.
The Dismissal
On 28 June 2022, Miss Treadwell was dismissed by Barton Turns Development Ltd, specifically by Ms. Wyss. The employer gave a different reason for the dismissal, suggesting it was due to other performance-related issues. However, Treadwell believed that the true reason for her dismissal was directly linked to the protected disclosures she had made.
The Original Claim: Automatic Unfair Dismissal
Following her dismissal, Miss Treadwell brought an initial claim of automatic unfair dismissal under the Employment Rights Act 1996. She argued that her dismissal was directly related to her making protected disclosures (whistleblowing). Under the law, if an employee is dismissed primarily because they made a protected disclosure, this dismissal is automatically considered unfair, regardless of the employee’s length of service.
The original claim targeted the employer’s direct action of dismissal, with the focus being on whether the dismissal was a direct consequence of her whistleblowing.
Amending the Claim: Whistleblowing Detriment
As the case progressed, Miss Treadwell sought to amend her claim to include an allegation of whistleblowing detriment. In this amended claim, she argued that the dismissal itself was not just unfair but also constituted a detriment – a form of retaliation against her for making protected disclosures.
This claim introduced a broader perspective by seeking to hold the company vicariously liable for the actions of its director, Ms. Wyss, who carried out the dismissal. Miss Treadwell’s legal strategy here involved alleging that the dismissal was part of a series of detrimental actions related to her whistleblowing. Essentially, she argued that her dismissal was a retaliatory act, and both Ms Wyss and the company should be held responsible for this.
The Option to Bring a Claim Against the Individual Director
An additional important aspect of the Treadwell case is that, under the precedent set by the Court of Appeal in Osipov, Miss Treadwell had the option to bring a claim directly against Ms. Wyss, the director who dismissed her. While Miss Treadwell chose not to pursue this route, Osipov makes it clear that she could have done so.
In Osipov, the Court of Appeal held that an employee could bring a claim under section 47B(1A) of the Employment Rights Act 1996 against an individual co-worker—such as a manager or director—if that individual subjected the employee to a detriment, including being involved in the decision to dismiss. This means that in cases of whistleblowing, not only can the company be held vicariously liable, but the individuals who made the decision to dismiss can also face personal liability.
This possibility of facing personal liability should make directors and managers cautious when handling dismissals that could be related to whistleblowing. Even if the employee does not initially bring a claim against an individual manager or director, the legal framework allows for such a claim to be made, which could have serious implications for the individuals involved.
Why This Matters for Employers
The EAT’s decision to allow Miss Treadwell’s amended claim highlights a significant risk: directors or managers involved in dismissal decisions related to whistleblowing could be personally liable for those decisions. This goes beyond the company being liable for unfair dismissal—it opens the door to additional claims of detriment, which could result in higher compensation for the employee, such as damages for injury to feelings.
For business owners and managers, this case serves as a crucial reminder to tread carefully when handling any employee complaints, especially those that might be considered whistleblowing. Even if a dismissal seems justified from a business perspective, if it’s linked to a protected disclosure, it could lead to significant legal challenges.
Why You Should Seek Legal Advice
At Bell Taylor, we understand that navigating the complexities of employment law can be daunting, especially with cases like Treadwell highlighting the potential for personal liability in whistleblowing claims. As the legal landscape continues to evolve, it’s more important than ever for businesses to be proactive in managing these risks. Whether you need to review your current policies, seek advice on handling whistleblowing complaints, or ensure compliance with the latest legal standards, we’re here to help.
Our practical approach ensures that your business stays compliant while protecting both your interests and your employees. Don’t wait until a claim arises—take action now to safeguard your business and its leaders from potential liabilities.
For more information on how we can help your business navigate these issues, feel free to get in touch directly:
Bell Taylor Office: 01743 298000
Richard: richard@belltaylor.com
Ben: ben@belltaylor.com