Duncan Milne: COVID whistleblowing claims are inevitable
Duncan Milne warns employers over claims arising from the pandemic.
An increase in whistleblowing claims over the coming months is inevitable. There are two main reasons for this. Firstly, according to HM Revenue and Customs (HMRC), the furlough fraud reports are now sitting at around 8,000. This figure is only likely to increase. You can imagine an employer giving a subtle nudge and a wink to its furloughed employees to check their emails and chip in, where needed.
The employee is getting more free-time at home and only suffering a 20 per cent reduction in pay. It’s a pretty good deal for both parties, right? This is, of course, unlawful.
Secondly, employers are having to take a more robust approach to health and safety now more than ever. These are uncharted waters and the level of the measures in place will undoubtedly vary on a case by case basis. What is a reasonable approach for some employers might be seen as quite unreasonable for other employers.
Reality is setting in for furloughed employees. The Coronavirus Job Retention Scheme is ending soon and employers are addressing potential redundancies. Employees might want to challenge any redundancies by also addressing any health and safety concerns with their employer.
The employee may choose to raise these concerns, not only with the employer, but also with HMRC or its regulatory body. The employee could then be deemed a whistleblower and may be protected from any detriment if the primary reason for the detriment is the act of blowing the whistle.
In the context of COVID-19, a whistleblower is an employee (or worker) who raises concerns about any behaviour of its employer amounting to a breach of contract, criminal offence or where it amounts to being dangerous for a person’s health and safety. Employees only require to have a “reasonable belief” a malpractice has taken place or is likely to take place.
An increase in the number of Employment Tribunal claims is also likely. Employers may face claims for unfair dismissal and the usual remedies are available if the claim is successful. However, employers should remember that there is no upper limit on the amount of compensation that can be awarded under the whistleblowing legislation.
If the employee has been negatively impacted in the job market, the tribunal may be more inclined to make a substantial award to the employee where there has been career loss.
There may also be an increase in Employment Tribunal claims for interim relief. This is perhaps a more fruitful remedy for an employee is to pursue. If successful, this type of claim allows an employee to:
(1) be paid by the employer to a final hearing;
(2) have the claim for interim relief decided on documentary evidence only; and
(3) have the case heard by a judge sitting alone as opposed to a full panel of three.
The test the employee is required to meet is higher than a standard whistleblowing claim, where 51 per cent is the threshold.
For interim relief claims, employees are required to show they are “likely” to be successful in their claim. These claims are also heard relatively quickly. With the backlog of claims in Scotland slowly building up well into 2021, this may prove to be a favourable option for whistleblowers.
Even if the employee is unsuccessful in their claim at a final hearing, they are not required to repay the sums awarded under interim relief. This is a scary thought, given the backlog of claims are only going to lengthen.
Employers should be aware of the ease with which whistleblowers can argue their redundancy is because of their whistleblowing. It is still possible for employers to fairly dismiss employees who have blown the whistle. However, the process does become much riskier. As always, employers should take advice given the value of any potential claims.
Duncan Milne is a solicitor in at Blackadders. This article first appeared in The Scotsman.