Could reporting bulling or harassment be a form of whistleblowing?

Two recent Employment Tribunal decisions have made it clear that employees who report bullying or harassment of other members of staff may qualify as whistleblowers.

In Cameron-Peck v Ethical Social Group Ltd and others, the Claimant received complaints from staff members about bullying by Ms Alexander, the CEO of Fluttr.  She brought the complaints to the attention of Mr Pullam, the Founder and Group CEO telling him that staff had contacted her in tears about bullying and rudeness they had experienced and the way they had been treated. The Claimant alleged that her complaints were not investigated.

The Claimant said she became increasingly isolated from other members of staff and was spoken to in a condescending manner by Mr Pullan, whom the Claimant alleged permitted Ms Alexander to continue her bullying and aggressive behaviour. The Claimant was later excluded from conversations and messages relating to Fluttr, which she claimed was in response to her saying that nothing had been done about the bullying. She was also not invited to a board meeting, despite being a non-executive director.

The Claimant was suspended pending a disciplinary investigation. She resigned the next day giving 3 months’ notice. She was invited to a disciplinary hearing but was not told allegations of misconduct she had to answer. She subsequently resigned with immediate effect. The Claimant did not have length of service to bring an ordinary unfair dismissal claim, however she claimed that she had been automatically unfairly dismissed for blowing the whistle.

In Mysakowski v Broxborn Bottlers Ltd, the Claimant raised concerns with a manager about an incident of sexual harassment he had witnessed.  He said he had seen a senior male manager massaging the shoulders and neck of a junior female employee and he understood that the female employee was uncomfortable, and he felt that it was inappropriate conduct. The Claimant refused to name the individuals involved on the basis that the female employee involved had asked him not to. The manager told the Claimant that the company could not investigate the matter unless it knew who was involved. The claimant did not disclose the individuals involved and asked whether, instead, the company could issue a general reminder to staff about appropriate conduct in the workplace. The claimant’s employment was terminated on 19 April 2023.  He claimed that he had been automatically unfair dismissed for blowing the whistle.

In both cases the Employment Tribunal had to consider whether the disclosures amounted to protected disclosures. The Employment Rights Act says that a qualifying disclosure is a:

• disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:

1. that a criminal offence has been committed, is being committed or is likely to be committed,
2. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
3. that a miscarriage of justice has occurred, is occurring or is likely to occur,
4. that the health or safety of any individual has been, is being or is likely to be endangered,
5. that the environment has been, is being or is likely to be damaged, or
6. that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

In Cameron-Peck, the Employment Tribunal approached the disclosures about the bullying of staff as disclosures that tended to show that the health or safety of individuals had been, was being or was likely to be endangered.  The health and safety of employees is an important matter and several staff had been affected.  As such, it was reasonable for the Claimant to have believed the disclosures were in the public interest. The Tribunal concluded that the Claimant’s disclosures about Ms Alexander’s bullying passed the necessary tests and were protected disclosures.  The Claimant won her claim and was awarded compensation of £185,000.

In Mysakowski, the Employment Tribunal approached the disclosures as disclosures which tended to show a failure to comply with a legal obligation, namely, obligations under the Equality Act 2010.  The Tribunal concluded that the Claimant believed that the information disclosed was in the public interest and it was reasonable for him to have held that belief.  The Tribunal concluded that the Claimant made a protected disclosure, meaning his claim may now proceed to a final hearing on the merits of his claim.

What do these decision mean for employers?

These decisions highlight that complaints about the mistreatment of others may amount to protected disclosures attracting whistleblowing protection and employers should be careful about how such complaints are treated.

Practically speaking, this means that employers in this situation should consider dealing with such complaints under internal whistleblowing procedures (where there is one) instead of, or in addition to, an individual grievance procedure.

Employers should be aware that if a whistleblower is mistreated as a result of having made a protected disclosure, they will be entitled to bring a detriment claim seeking compensation for losses arising from that detriment and for injury to feelings. In the event that they are dismissed, they will be entitled to claim automatic unfair dismissal (and there is no length of service required to bring a claim and as such can be from Day 1 of their employment) and seek uncapped compensation for losses flowing from the dismissal.  Further, an employee who has blown the whistle about discrimination or harassment may also have a separate claim for victimisation under the Equality Act 2010 if they are subjected to detrimental treatment for having raised those concerns.