Article / 3 May 2022
This week it was announced that the Department of Agriculture, Environment and Rural Affairs (DAERA) has paid out £1.25m of taxpayer money to settle a whistleblowing case.
In the context of Employment Tribunal claims, this is very significant compensation. Therefore, it is worth analysing the case a bit further to provide lessons to other employers as to how to avoid such claims.
The case was brought by Dr Tamara Bronckaers, a senior vet employed by DAERA. She discovered and raised concerns about serious breaches of animal welfare legislation and traceability within the meat supply chain relating to the deletion of records on the movement of cattle.
She began raising these issues with her managers back in 2017, the result was that she was professionally ignored, belittled and side lined by her managers. This treatment subsequently resulted in her resignation. Dr Bronckaers subsequently pursued claims in the Industrial Tribunal against the DAERA for unfair dismissal and automatic unfair dismissal on the grounds of whistleblowing and a claim for being subject to a detriment because of whistleblowing.
She won her claim in September 2021 and the claim was subsequently settled by DAERA for the stated eye watering sum along with a public apology. Now there is no doubt that the size of the award is linked, to some extent, with the Claimant having been employed in quite a niche role in the public sector and the difficulties in finding alternative employment in a similar role, particularly in Northern Ireland. But nonetheless, whistleblowing cases do tend to attract significant awards of compensation as well as courting significant publicity. So, what lessons can be learned from this case and, indeed, many others.
Quite often the managers and HR involved in cases simply fail to identify the risk at an early stage and allow situations to develop over time with no visibility or oversight. To be fair to employers, it is not always easy to identify what may or may not be a concern that is protected under whistleblowing legislation as concerns raised by employees can appear quite innocuous or normal if they fall within the confines of an employee’s job (as was the case here). Indeed, quite often a lot of time is spent in the Tribunal trying to determine whether something is protected. But through the benefit of training, managers and HR should be alert to the risks of situations being protected under whistleblowing legislation.
In so many whistleblowing cases, the key indicator for a successful whistleblowing case is where the employee complaining is seen as a nuisance. The word can be found in many of the leading whistleblowing cases. Once an employee is seen as a nuisance for raising matters, the employer becomes frustrated, and this quickly leads into mistreatment of the employee. The same occurred in this case. So, this is another factor in assisting in the early identification of possible whistleblowing cases.
The longer the period of whistleblowing and mistreatment of the employee, the more significant the compensation is likely to be. Typically, the longer the time frame, the greater the number of interactions between employer and employee and the development of the whistleblowing case. This also links in to compensation for injury to feelings for the combined effect of the detrimental treatment.
The benefit of having a whistleblowing policy is that an employee using this will immediately identify to the employer that the matter should be treated carefully and considered potentially protected. Some larger employers may also have a whistleblowing hotline where employees can ‘blow the whistle’ to someone independent of their line of management. This is particularly useful where it is unlikely that management in the employee’s area are all involved in the matter (as was the case here).
This case and the level of compensation demonstrates that getting it wrong can cost a serious amount of money as there is no limit on compensation that can be claimed for a whistleblowing case. But such situations need not develop into high profile court cases. Employers are best advised to have a whistleblowing policy as well as training for managers on how to identify potential whistleblowing situations and when to seek HR support or legal advice. Early identification of such issues and addressing them promptly and fairly is the most sensible advice.