Whistleblowing Claims in the Employment Tribunal
Whistleblowing Claims in the ET
This page provides guidance for whistleblowers bringing an employment tribunal claim for detriment or automatically unfair dismissal on grounds of making a protected disclosure. It covers the applicable time limits and procedural matters, such as applications for interim relief. It also provides practical tips for bringing and defending whistleblowing claims, including drafting pleadings. It also discusses compensation and other remedies available for successful claimants.
Detriment or Dismissal
A worker may bring a claim in the employment tribunal if they are subjected to any detriment by any act or deliberate failure to act by their employer on the ground that they have made a protected disclosure. Before bringing such a claim, a worker should generally submit a written grievance and both parties should comply with the Acas Code of Practice on Disciplinary and Grievance Procedures. If the detriment takes the form of a dismissal, the employee cannot bring a detriment claim against the employer but must instead bring an unfair dismissal claim. However, the employee might also bring a separate claim for detriment against the dismissing manager personally in relation to their decision to dismiss, for which the employer could in limited circumstances be vicariously liable.
Length of Service
There is no minimum length of service requirement for bringing a claim of detriment or unfair dismissal based on a protected disclosure, and there is no upper or lower age limit.
EC Certificate
Most tribunal claims, including those for whistleblowing detriment and unfair dismissal, are subject to the rules on mandatory Acas early conciliation (EC). Once a claimant or respondent contacts Acas, it will attempt to facilitate a settlement. No claim can be submitted without an EC certificate, unless an exemption applies. Some exemptions include unfair dismissal cases where the claimant's ET1 is accompanied by an application for interim relief, which must be submitted within 7 days of the effective date of termination (EDT).
Time Limit
Time limits in unfair dismissal cases are subject to the rules on EC, with an employee must bring a claim for unfair dismissal within three months of the effective date of termination (EDT). In detriment cases, a claim must be presented "before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them." In deciding whether a detriment case is brought in time, tribunals must focus on the date of the act giving rise to a detriment, not the consequences that follow.
For detriment arising from an omission (a failure to act), time runs from the date of the deliberate decision not to do the act. In the absence of actual evidence of a decision not to act, the decision would be taken "when the period expires within which [the employer] might reasonably have been expected to do the failed act." For alleged acts of detriment to form part of "a series of similar acts," there must be "some relevant connection between the acts."
In summary, tribunals must consider various factors when determining whether a claim is brought in time, including the date of the act giving rise to a detriment, the deliberate decision not to act, and the existence of a series of similar acts.
Extension of Time
The Employment Tribunal (ET) can extend time for submitting a claim when a claimant refers a dispute to Acas for Early Conciliation (EC). This extension is not triggered by the respondent referring the case to EC but only if the claimant complies with the statutory duty to contact Acas. If the time remaining at that point would be less than a month, it is automatically increased to a month. The tribunal can extend time for submitting a detriment claim or an unfair dismissal claim if it is satisfied that it was "not reasonably practicable" for the claim to be presented in time.
Drafting your Claim
Drafting your claim needs to be done with care. This is a difficult area of law with lots to consider. When drafting a case, claimants should ensure the pleaded case is clear and consistent from the outset, setting out the context in which the alleged protected disclosure was made, and focusing on the protected disclosures that gave rise to the alleged detriments and/or dismissal. They should carefully analyse any alleged protected disclosure they wish to plead and focus on whether it truly meets the statutory requirements. Parties must bear in mind their obligations to further the overriding objective, which includes having regard to the fact that the tribunal's resources are limited and must be fairly distributed among the many parties that have a right to have their claims heard.
How to Plead Detriment and Dismissal
When there is a detriment claim, an unfair dismissal claim, or both, claimants should consider whether they can bring a detriment claim for actions prior to the dismissal. Any detriment claim should be clearly and separately pleaded, with the acts of alleged detriment fully set out and the alleged proponents of such detriments added as additional respondents where necessary.
Claimants should state that they are seeking compensation for losses resulting from dismissal under section 47B and section 103A of the ERA 1996. Post-termination detriments should also be separately pleaded. It is important to check that all potential respondents have been included, as detriment claims can also be brought against co-workers in their personal capacity. If the claim is a "tainted information" case, the conduct of the manipulator should be pleaded as a separate act.
Merits of the Claim
The strength of the whistleblowing claim should be considered, as it may lead to cost consequences if the claimant's conduct has been unreasonable. If the Acas Code of Practice on Disciplinary and Grievance Procedures (Acas Code) applies, the claimant should set out how they have complied with it. Respondents should consider the context of alleged disclosure, establish a positive case as to the reason for the alleged detrimental treatment and/or dismissal, and consider causation.
In detriment claims, respondents should establish a positive case as to why the claimant was treated in a particular way. In a dismissal claim, the burden lies on the employer to show the true reason for dismissal. If the respondent has a strong case on causation, it may decide that there is a tactical advantage in conceding that there was a protected disclosure.
The employer may wish to plead the "reasonable steps" defence to detriment claims, stating that it took all reasonable steps to prevent the co-worker from carrying out their actions. This defence depends on whether the employer will "stand by" the other worker, whether the co-worker has faced disciplinary action or dismissal, and the message it sends to other employees.
Whistleblowing is a legal process where a claimant can file a complaint against an employer, which can be made in the employment tribunal. The claimant must provide information about their employer, including the identity of any named individual's employer, bad faith, and compliance with the Acas Code. If the claimant fails to provide enough information, the employer may need to submit an ET3, request further information, and then apply to amend the ET3.
In some cases, employers may use poor pleading to avoid making a whistleblowing complaint, such as in Secretary of State for Work and Pensions (Jobcentre Plus) v Constable UKEAT/0156/10, where the ET1 did not clearly outline the alleged unlawful behaviour by the claimant's boss. The tribunal refused the employer's request for further information, stating that it was up to the claimant to produce evidence of a protected disclosure.
What Is Interim Relief in Whistleblowing Claims?
Interim relief can be granted in certain types of unfair dismissal cases, including in alleged whistleblowing cases. This can have substantial benefits for a claimant, such as immediate financial benefits, extended period of continuous employment, and reduced pressure on the respondent. However, it also puts the respondent under significant pressure to consider their case and gather evidence and witness statements in a short time period.
If the tribunal declines to grant interim relief, it can be beneficial if it does not believe the claimant is likely to establish at full trial that the protected disclosure was the reason for dismissal. In summary, a well-prepared claimant can successfully file a whistleblowing complaint, but employers should be aware of the potential risks and benefits associated with this process.
Making an Application for Interim Relief in Whistleblowing Claim
Interim relief applications must be made before the end of 7 days following the effective date of termination (EDT), and can be made during the notice period if the employee was dismissed with notice. An extension may only be possible if there has been deliberate fraud by the employer causing real injustice to the employee. The tribunal must hold a hearing "as soon as practicable" and give the employer at least seven days' notice of the date and time. Hearings will rarely be postponed, and only if the tribunal decides there are "special circumstances."
Interim relief hearings must be held in public unless an order restricting publicity is made under rule 49 of the Employment Tribunal Procedure Rules 2024 (ET Rules 2024). Evidence and submissions are summary in nature, and the tribunal will rely on pleadings, written submissions, a small number of documents, and any witness statements. Interim relief can only be granted if the tribunal thinks the claimant is "likely" to establish at full trial that the protected disclosure was the reason (or principal reason) for dismissal (section 129(1), ERA 1996). In cases where the employer disputes the tribunal's jurisdiction to hear the unfair dismissal claim, the tribunal should apply the same "likely to succeed" test to all elements of the claim.
