Whistleblowing

A tribunal incorrectly made an award for aggravated damages because it focused upon the seriousness of an employer’s conduct rather than the effect that the conduct had upon the employee’s injury to feelings. The EAT confirmed that aggravated damages are an aspect of injury to feelings and are not an additional award - they are awarded as compensation and are not designed as punishment.

An employer cannot be held vicariously liable under the whistleblowing legislation where its employees victimise their whistleblowing colleagues. The reason for this is that, unlike in discrimination law where employees can be held personally liable for their acts of victimisation against an employee pursuing a discrimination claim, no such liability exists for employees in relation to whistleblowing claims – and vicarious liability can only arise where an employee has done an unlawful act.

A worker can complain of suffering a detriment from his current employer because of whistleblowing allegations made while working for a previous employer.

Hibbins, a language teacher, worked one day a week at Hesters on secondment from her main employer. She realised that someone who had applied to work at Hesters was a suspect in a rape case and passed that person’s address and telephone number to the police.

To be protected under the whistleblowing legislation, a worker must reasonably believe that the disclosure he or she makes relates to one of 6 specified grounds, e.g. that the employer has committed a criminal offence or has failed to observe a legal obligation.

The Court of Appeal held that it is unlawful victimisation to refuse to provide a reference for an employee whose employment has been terminated but who, when employed, blew the whistle on his employer.