Although the law surrounding whistleblowing is generally considered to be complex and oft results in the whistleblower being subjected to stigma (regardless of whether their statements hold true), it can still be an attractive course of action for an aggrieved employee due to the potentially unlimited damages which are available if their claim is upheld by an Employment Tribunal. Employees also do not need a qualifying period of service, (such as 2 years for unfair dismissal claims) to enable them to bring a whistleblowing claim.
It is vital that employers handle any whistleblowing allegations sensitively, appropriately and resolutely as the consequences; both financial and reputational, that can occur as a result of a poorly handled whistleblowing situation should not be underestimated. Consideration should also be afforded to the wellbeing of the whistleblower and the psychological damage that “blowing the whistle” can have on both their ability to perform in the workplace and their personal lives.
An Employment Tribunal (or court, as appropriate) will take into consideration the employer’s conduct throughout the matter, including during any hearing (including the remedy hearing, where the factual findings have already been determined). In whistleblowing claims, a tribunal has the power to award aggravated damages where it considers an employer’s conduct to be particularly “high handed”. Such an award is very rare, but employers should take note that this can be a substantial sum determined largely on how they have treated the whistleblower and their conduct of and throughout the litigation.
Indeed, the latest employer to fall victim to such an award is the Royal Mail Group in the long-awaited remedy hearing of the landmark case, Ms K Jhuti v Royal Mail Group Ltd. Ms Jhuti’s claim went all the way to the Supreme Court who found that she had been unfairly dismissed as a result of the protected disclosures she had made.
Although the overarching principles, and facts, of this case are quite rare – employers should take heed of the “failings” attributed to the Royal Mail Group’s conduct throughout the litigation.
In its remedy judgment, the Tribunal found that Ms Jhuti had been subject to a “campaign of bullying, intimidation and harassment” which had the effect of ultimately destroying her life. It was also established that Ms Jhuti was unlikely to ever work again due to the impact of the Royal Mail Group’s actions towards her.
The Tribunal awarded her loss of earnings up to the normal retirement age of 67 (and assumed that Ms Jhuti would have received annual pay increases of 2% up to retirement). She was also awarded an additional sum of £55,000 for personal injury and an injury to feelings award of £40,000 – as the Tribunal held that Ms Jhuti’s depression was solely the result of the Royal Mail Group’s conduct.
Alarmingly for employers, the Tribunal also made a £12,500 award for “aggravated damages” for the Royal Mail Group’s conduct (solely) during the remedies hearing which it considered to be malicious and oppressive. Examples of such behaviour included the Royal Mail Group’s failure to accept the factual findings of the Supreme Court and resultingly cross-examining Ms Jhuti in the remedies hearing as though those findings of fact had not already been made. Further, Ms Jhuti’s former employer suggested that she had been dishonest to medical experts and the Tribunal. Overall, the tribunal noted that the cross examination of Ms Jhuti was “painful to witness” and both resurfaced and aggravated memories of the bullying she had suffered during her time at the Royal Mail Group.
Finally, the Tribunal awarded an uplift for the Royal Mail Group’s unreasonable breach of the ACAS Code of Practice on Disciplinary and Grievance procedures as it had deliberately failed to provide Ms Jhuti with an outcome to her grievance for three months. Despite, in the Tribunal’s view, this ordinarily justifying a 10% uplift, it decided, in the circumstances, to consider the overall financial value of this level of uplift being applied. On this basis (and to avoid awarding a disproportionate amount of compensation), it ultimately decided to award an uplift of 0.5% in consideration of the substantial value of compensation already being awarded.
Key Takeaways from Ms K Jhuti v Royal Mail Group Ltd
As a starting point, employers should ensure that they have robust whistleblowing procedures in place, which are applied consistently throughout their organisation and should deliver regular training to managers on how to deal with any alleged whistleblowing complaints.
Employers should always have at the fore of their minds, in any whistleblowing investigation, the potential financial and reputational cost of failing to handle such a complaint fairly and proportionately. This attitude should carry throughout any subsequent litigation and, where findings of fact have already been made against the employer, they would be wise to proceed cautiously (if such findings have not been appealed) and not continue to subject the employee to detriment accordingly, given the financial implications that this might bring in any remedy hearing.
Although the facts in Ms K Jhuti v Royal Mail Group Ltd are specific, the implications of that judgment should act as a warning to employers on how to conduct themselves in litigation, particularly where the employee suffers from mental health issues (and especially so if these are as a result of the employer’s actions).