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Whistleblowing your way out of redundancy
15 April 2008COMMENTS
What if after uncovering and raising an issue you were suspended and in the end had to resign? What are the legal implications then? Read all comments »Whistleblowers who are unfairly made redundant can command unlimited payouts in compensation. Guess what? Lawyers say whistleblowing claims are suddenly all the rage.
“Employees are increasingly aware of the role that whistleblowing may have played in their treatment,” says Gareth Brahams, an employment law partner at Lewis Silkin. “I have at least three cases pending.”
Daniel Ornstein, an employment lawyer at Herbert Smith, says that – used cynically – a whistleblowing case can be a way of upping the stakes in redundancy claims and negotiating a higher settlement: “We do see people exploiting their legal rights in order to try and up the ante. It’s not uncommon unfortunately, and gives well deserving individuals a bad name.”
Whistleblowers are eligible for the kind of unlimited compensation that’s usually only on offer in discrimination cases. To get it they need to demonstrate that they have been subject to a ‘detriment’ for raising awareness of wrongdoing (known as making a ‘protected disclosure’ in the jargon).
Blowing the whistle can amount to little more than emailing someone in authority about a supposed misdemeanour.
Once the whistle’s been blown, employers should be wary of doing anything that might be perceived as detrimental (such as making the blower redundant). “Where an employee suffers detriment shortly after making a protected disclosure, the employer will often be on the back foot,” says Ornstein.
Lawyers point out that raising a whistleblowing case purely as a means to redundancy amounts to acting in bad faith, and certainly isn’t to be encouraged.
However, the prospect of losing one’s job can help concentrate the mind.
“Banking is a highly regulated industry where people are pushing boundaries all the time,” says Brahams. “A lot of people are aware of things that might not be entirely permissible.”
“You can blow the whistle on anything that’s potentially unlawful – including breaches of minor legislation like your workstation not complying with EC guidelines,” says Ornstein. “In banking it usually has more to do with irregularities in the way trades are booked,” he adds.
COMMENTS
Julie, Wed 16 Apr 08
Hi Leo,
I think this article is very unhelpful because the employment lawyers (who probably work for corporates rather than private individuals) have not emphasised how important it is for a litigant to prove causation and what loss they directly suffered following the protected disclosure. If the bank would have fired you anyway for performance/misconduct etc, it is highly unlikely your case would succeed.
There seem to be many article recently about how litigatious people in the City are getting, but it does not address the issue that most cases are very difficult to win even if your legal rights are breached. This is why many people simply walk away if they haven't suffered serious loss impacting their ability to immediately secure new employment eg nervous breakdown etc
Good luck with your situation
Anonymous, Corporate Banking, Sun 20 Apr 08
I fully concur. A larged UK based bank that touts ethics and integrtity had no compunction in attempting to destroy my career/reputation in a SE Asian country where they have branche. Sadly a colleague who proved fiduciary mismanagement against the bank had hi personal reputation detroyed and physical injury was avoided possibly because of a police complaint. Worse, the SFO and Bank of England who have whilsteblower legislation claimed it was 'outside' their jurisdiction....
Hence unless your ethics /morals allow to act in a manner than border on being criminal (in the same way that an employer would)..you may suffer rather than be rewarded for your pains..
Jay, Compliance / Legal, Mon 21 Apr 08
I think this article is a good example of one of the more subtle forms of intimidation corporate employment lawyers use to discourage claimants. My advice is that if you feel you are being treated unfairly by your company, consult a solicitor. They can advise you of when the company is making empty threats which they could never legally enforce.
For example, if you raise a claim against a senior banker, the company might threaten you with a full investigation into your personal and professional life since you left university. Quite an intimidating prospect, even if you have nothing to hide. A good solicitor would advise you that the only relevant facts are the events which gave rise to the act of Whistleblowing and a court would take the same view – anything more would be a gross invasion of privacy and not relevant.
From the company’s perspective quite often they know about the behaviour which the Whistleblower informs of and it is in their interests to scare the employee off by whatever means possible, even if it means destroying the employee’s reputation to protect the company
jjb, Accounting, Tue 22 Apr 08
this is a very interesting subject. where i come from, i am not sure if there are any laws governing whistlblowing, but i think that one should be protected sufficiently enough if they have put out something unlawful, whether it be about an organisation or individual.
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