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.