A whistle blower was awarded £168k after his concerns about bullying, racism, and sexual harassment were leaked to colleagues, including one who was named in the report, a tribunal heard.
Martyn Diamond Black presented evidence of “inappropriate sexual advances towards an employee, of a culture of harassment, of a culture of bullying, of breaches of Covid-19 quarantine measures [and] of racism in hiring” within the Bangalore offices of Alain Charles Publishing, a London-based publisher.
But the findings of his report were not properly investigated by Black’s manager, who was said to have a “striking” and “obvious loyalty” to the employee at the centre of the allegations, according to an employment judge.
Black, the company’s manager of Health, Safety and Security Forums, began investigating after he was approached by colleagues in their Bangalore office, about several disparaging reviews on the website Glassdoor.
He raised the matter with the firm’s Managing Director, Nick Fordham, who asked him to compile a written report on his interviews with staff members.
Black, a former Senior Non-Commissioned Officer with the British Army, produced a 31-page report which recommended that a member of staff at the centre of accusations, Ms S Subramanian, be suspended while HR launched an investigation.
However, Black was soon told by numerous employees that the content of the report had been shared with them or leaked to them. He told the tribunal he was “aghast” at this, and more so when he came to believe that the report or its contents had been shared with Ms Subramanian.
This led Black to tender his resignation.
An employment tribunal found that Fordham had failed to properly investigate the report. Black also said he felt “gaslighted”, marginalised and isolated and was demoted without any warning or consultation. He found that his role became increasingly untenable so resigned from the post before filing a case against Alain Charles for wrongful treatment.
The tribunal ruled that Black had been subject to unfair and wrongful dismissal, and experienced detriment and victimisation for whistleblowing while working at Alain Charles.
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The employment judge said: “... the respondent [Fordham] did commit a fundamental breach of the claimant’s [Black] contract of employment. The marginalisation and undermining of his role were in breach of the implied term of mutual trust and confidence... the claimant was excluded from meetings to which he would hitherto have been invited...the Respondent breached the Claimant’s contract of employment... the Claimant was entitled to resign because of these breaches.”
The court also stated: “We are persuaded that [Fordham] did try to denigrate [Black]. He spoke of him during the hearing at times in a condescending tone and admitted having used strong language about him. The contrast between this and the animated way in which he spoke about the India Office Manager [Subramanian], and obvious loyalty he felt towards her, was striking”.
The court accepted that Black had a genuine belief that his confidential report was reasonable and made in the public interest.
The court ordered Alain Charles Publishing to pay Black £167,942 compensation including loss of earnings.
Should workers be worried about the repercussions of speaking up?
There are big issues for HR to consider around the repercussions employees might face if they blow the whistle on workplace issues.
Protection for UK whistle blowers like Mr Black is provided under the Public Interest Disclosure Act 1998 (PIDA, part of the Employment Rights Act 1996. The legislation protects employees and workers who blow the whistle about wrongdoing.
As per Reuters news agency’s Practical Law page, employees who make "protected disclosures" under the Disclosure Act can claim unfair dismissal if their contracts are terminated as a result of their whistleblowing.
They are also protected from other potential punishments such as a refusal to offer promotion, facilities or training opportunities.
However, only certain kinds of disclosure qualify for protection under the PIDA. These are known as "qualifying disclosures" and must relate to one of the following:
A criminal offence
A breach of a legal obligation
A miscarriage of justice
A danger to any individual's health or safety
Damage to the environment
Deliberate covering up of information relating to any of the above.
Elizabeth Gardiner is the CEO of UK whistleblowing charity Protect. Regarding whistleblowing laws, Gardiner said: “It is unlawful for an employer to dismiss an employee or subject them to a detriment (any disadvantage) because they have blown the whistle.
“However, only workers are protected (not everyone in the workplace for example non-executive directors, self-employed contractors etc.) and to qualify for protection, they need to reasonably believe that their concern falls within the six categories of wrongdoing set out in the law (crime, breach of a legal obligation, health and safety, damage to the environment, miscarriage of justice or cover up of any of the above) and is in the public interest. A whistleblower can be protected if they raise the concern internally to their employer, but also externally to a regulator or even to the press (but different legal tests apply to each stage).
“In Protect's view, it is vital that workers have a remedy (damages via the employment tribunal) if the employer treats them badly because they've tried to raise a concern. However, the current law is only retrospective and we think that there should also be stronger positive requirements on employers to put effective whistleblowing arrangements in place, and a positive duty to prevent victimisation of whistleblowers.”
Why employers should care about ensuring their employees can blow the whistle safely
“Whistleblowers are the eyes and ears of an organisation, and the best form of risk management,” said Gardiner.
“They can spot small harms or risks and prevent disasters, saving lives and livelihoods, reputations and finances. Creating a space where employees feel safe to blow the whistle is good for business - it means that employers can detect risks early, deter wrongdoing, and provide a positive workplace culture which will help attract and retain talent.”
How employers can best deal with whistleblowers in their organisations
“It is vital that employers train everyone on how to speak up, and also train managers in how to respond to a whistleblowing concern. Whistleblowers are often conveying difficult information about wrongdoing and managers need to be trained to be good recipients of bad news. They need to be able to identify whistleblowing concerns and recognise that they are not the same as grievances, thank and reassure whistleblowers and protect their confidentiality throughout any investigation of that concern. Managers also need to know when and how to escalate concerns raised with them.”
What employers could put in place to increase protections for whistleblowers in the workplace
Gardiner concludes: “Training (as above) is vital, but the best employers go further and introduce risk assessments to ensure whistleblowers are protected when they come forward.
“But creating the right culture is everyone's business. Chief executives and senior leaders need to set the tone - they should encourage speaking up at work, and explain that they will implement serious sanctions for treating whistleblowers badly. The general public now see whistleblowers in a positive light but too many employers still see whistleblowers as a problem, not as the valuable early warning system that every good business needs.”
