Alan McCormack | Senior Associate

Returning to Work, the Coronavirus and Whistleblowing Protection

The coronavirus pandemic continues to have a significant impact on businesses ability to provide their services, and on an individual’s own ability to work. After months of furlough leave and home working, restrictions are finally easing and employers may now be of a mind to have employees return to the workplace.

Every business knows that the health and safety of employees and customers is a significant concern, and every workplace will no doubt have underwent (sometimes drastic) changes to allow business to resume. It is already clear that there will be challenges in adapting traditional working practices to the new normal so that employees, customers and service users are safe.

Protected disclosures where an employee returns to work

In a situation where an employee raises concerns about the company’s practices regarding health and safety it is important that businesses understand that by disclosing these concerns the employee may be protected from detrimental treatment or dismissal under the Employment Rights Act 1996. This is colloquially known as ‘whistleblowing’ and could relate to issues such as the systems put in place to ensure social distancing or the provision of appropriate PPE.

In this context, a qualifying disclosure (as defined in Section 43B of the ERA 1996) could be established where:

  • There is a disclosure of information;
  • The subject matter is related to the potential, or actual, failure of the company regarding their health and safety obligations;
  • the employee has a reasonable belief of the employer’s failure or wrongdoing, and;
  • The employee has a reasonable belief the disclosure is in the public interest.

If the employee can establish that they have suffered detrimental treatment because of a disclosure, then the company may be liable to the employee for compensation. Examples of detrimental treatment include, but are not limited to:-

  • Failure to promote;
  • Denial of training;
  • Closer monitoring;
  • Demotion;
  • Suspension;
  • Victimisation, and;
  • Dismissal.

Financial Penalties

Claims relating to a protected disclosure should be in the forefront of a company’s thinking where an employee has raised concerns regarding their return to work and the health and safety practices of the company. If an employee raises a claim and succeeds, there is no upper limit on the level of compensation an employment tribunal can award. This means the financial penalty an employer may be subject to can be severe.

There will of course be circumstances where, even if an employee makes a protected disclosure, disciplinary action may be merited: for example where an employee brings the company into disrepute by making disparaging remarks over social media. We would of course encourage employers to seek appropriate legal advice before any such action is taken to ensure the risk of a potential claim is minimised.

Practical steps to prevent claims

Having a clear whistleblowing policy that is understood and followed by all employees should help to ensure that there are practices in place that prevent allegations of detrimental treatment surfacing.

We are all adjusting to the new normal and employees may well have concerns regarding their return to work. It is important for employers to work constructively with employees to address concerns, and to show employees that the business has adapted appropriately to the challenges caused by the pandemic, and where concerns are legitimate to make appropriate changes. This should assist in fostering relationships of trust between the company and employees and reduce the risk of protected disclosure claims, and hopefully allow business to get back on track after what has no doubt been a difficult year.

Contact Jackson Boyd today

At Jackson Boyd, we have extensive experience in dealing with protected disclosure claims. If a situation arises where you require legal advice regarding the relevant legislation and your responsibilities please contact us today to arrange a consultation.

Alan McCormack

Alan McCormack

Employment Law Team

Contact us Share this page

Request a free call back

Our specialist lawyers will call you back at your preferred time to discuss your situation and explain how we can help.

Request Call Back

What our clients say about us

Read more