Scrase Law Employment Solicitors

Whistleblowing protection for employees

The Equality and Human Rights Commission (EHRC) confirmed this month that it has served the holiday park operator Pontins with an unlawful act notice after it found multiple instances of race discrimination against Irish Travellers.  The investigation into Pontins started when an employee ‘blew the whistle’ on discriminatory practices. 

What is whistleblowing?

The Public Interest Disclosure Act 1998 (often referred to as whistleblowing legislation) provides protection for workers and employees who report certain kinds of wrongdoing regarding their employer.  There are a number of conditions that must apply in order for the employee to qualify for protection.  These include that the employee must reasonably believe that their disclosure is in the public interest.   The information disclosed must relate to one of six types of ‘relevant failure’, including a breach of any legal obligation.  The whistleblower must also be able to show that the disclosure is protected.  Whether a disclosure is protected broadly depends on who they make the disclosure to.  This can be to the employer, however a disclosure can also be made to a prescribed person.  The EHRC is a prescribed person where the wrongdoing relates to equality or human rights law.

Employees who have made a protected disclosure are protected from dismissal.  The dismissal of an employee will be automatically unfair if the reason, or principal reason, for their dismissal is that they have made a protected disclosure. The legislation also protects employees from being subjected to any detriment on the ground that they have made a protected disclosure. Employees do not need 2 years’ service in order to pursue a whistleblowing claim and compensation for successful claims is unlimited. 

What is an unlawful act notice?

In this case, the whistleblower shared information with the EHRC about an ‘Undesirable Guest List’ which had been used by Pontins to discriminate against Traveller guests.  The EHRC entered into a legally binding section 23 agreement with Pontins.  The EHRC can enter into binding agreements with an organisation where it thinks that the organisation has committed an unlawful act.  Further information about section 23 agreements is set out in our separate post here

However, Pontins did not meet the terms of the agreement.  The EHRC therefore ended it and started an investigation which found that Pontins had committed ‘flagrant’ breaches of the Equality Act.  The breaches included creating a list of common Irish surnames, instructing staff to decline or cancel booking made under those names; instructing call centre staff to listen for Irish accents to identify Irish Travellers and decline or cancel their bookings; and maintaining a ‘banned guest’ list, containing people suspected of being Irish Travellers and their associates like family or friends.

When an investigation concludes that an organisation has committed an unlawful act, the EHRC may serve a notice on it specifying that it must prepare an action plan in order to avoid the repetition or continuation of the unlawful act, and recommending action to meet these ends.

In this case, as a result of the investigation, Pontins must now produce an action plan to set out how they plan to meet the EHRC recommendations.  These include apologising to and engaging with the Gypsy and Traveller community; and reviewing and updating their policies and procedures to ensure that they are not discriminatory.  The action plan is enforceable in court with criminal sanctions for failure to comply.

Comment

Whether an employee’s disclosure is protected can be a complicated issue, and it is for the Employment Tribunal to decide depending on the particular circumstances in the event of a claim.   Although generally there is no legal obligation on an employer to have a Whistleblowing Policy, it is advisable to do so. 

Employers should be aware of the enforcement powers available to the EHRC, which protects and promotes equality and human rights.  This can include entering into binding agreements, conducting investigations, serving unlawful act notices and intervening in legal proceedings, including Employment Tribunal claims.  

21 February 2024

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©2024 SCRASE LAW LTD. THIS POST IS FOR GENERAL INFORMATION ONLY AND IS NOT ADVICE. YOU ARE RECOMMENDED TO SEEK PROFESSIONAL ADVICE BEFORE TAKING ANY ACTION ON THE BASIS OF THIS POST