In the writer’s view those who find themselves either bringing or being a respondent to a whistleblowing claim in the employment tribunal should very seriously consider mediation. The purpose of this article is to highlight the potential benefits. Not only can it avoid the costs and stresses which the litigation will cause for both claimants and respondents but mediation can also facilitate the timely and effective remediation or avoidance of ‘relevant failures’ in cases where there has been a dysfunction between worker and employer following what the worker sees as the making of a protected disclosure. Put shortly, mediation can produce solutions which cannot be achieved by fighting a case through the tribunal system.
Justice delayed….
Anyone who brings a claim of any kind in the employment tribunal is likely to face a longer wait for a hearing than would have been the case before the pandemic but those bringing claims involving a whistleblowing element are likely to be amongst those who will now have to endure the lengthiest of those delays[2].
The waiting periods were already long before the pandemic. The APPG’s report referred to research by a team from the University of Greenwich which had looked at 603 cases brought in the period 2015 to 2018 which had included a PIDA claim. Amongst the key conclusions were that in 2018, for nearly half of all whistleblowing claims it was taking longer than two years to get to trial. And more than one in five was taking longer than three years.
Since then the backlogs are likely to have increased. Whistleblowing cases will almost invariably result in a multi day hearing. In January 2022 it was reported[3] that multi day hearings in Midlands East, Midlands West, the South West and most parts of the South East were generally being listed in the first half of 2023, that is to say up to 18 months after the case management hearing (which itself would by several months after the claims had been presented). The longest waiting times were in London South, London East and the North West, where 3 to 5 day hearing and 5 to 10 day hearings were being listed in the second half of 2023. Indeed London South and the North West had started listing cases lasting ten or more days in 2024.
The effects of delay
In most cases the putative whistleblower will have resigned or been dismissed. Very often there will have been what the claimant says are spurious allegations of misconduct or incompetence by the employer in retaliation for what the claimant contends was whistleblowing. It is widely recognised that whistleblowers still find it more difficult to secure new employment: there is still a stigma attached to that status. This is the part of the rationale for the absence of a statutory cap on compensatory awards and for a greater willingness on the part of tribunals to order compensation on a career loss basis for whistleblowers. Vindication by a favourable judgment from the ET may help but if that judgment is not obtained until years after the event the chances of a successful return to employment are inevitably reduced by de skilling. The risk to the claimant’s psychiatric well being is greatly increased[4]. In regulated sectors such as finance the claimant’s ability to work at all in their chosen vocation may be thwarted by their ex employer’s having filed adverse reports on their conduct or competence with the regulator.
Workers in the health sector are in a better position than most. The NHS Recruitment – Protected Disclosure) Regulations 2018 SI 2018/579 enable them to make a claim in the ET that an NHS employer declined to offer them employment because it appeared to that employer the worker concerned had made a protected disclosure[5]. So it is not necessary for the worker to establish that they had made a protected disclosure, only that it appeared to a prospective NHS employer that they had done so.
But outside of the NHS there is no protection for job applicants. An application for interim relief to maintain the employment with the former employer, or at least the income from that employment, can be made but the high threshold which is required to be met means that such applications are not made all that often and have low rates of success.
The impact of the delay in the hearing of the claim for the respondents’ side will be considerable too. Where, as increasingly the case, the individual decision makers are named respondents to a claim alongside the employer then the proceedings will inevitably hang over those individuals until the claim is resolved. Even if they have not been joined as parties then those who were concerned in the management of the claimant will, to varying degrees, be apprehensive as to the process of giving evidence and the implications for them of any adverse findings as to their actions which may appear in an ET’s Reasons for Judgment. As time goes by the prospects for a respondent of being able to meet the claimant’s allegations may be diminished as the employees who were concerned with the events in question move on to other jobs or just forget important details as to what happened. From a financial perspective the prospect of a possibly considerable award in favour of the claimant will persist as a contingent liability. Of course if the respondent does eventually lose the case then the defeat will not only have a direct financial consequence but it may also damage the reputation of the business. In some sectors the fact that an employer has had a successful claim of whistleblowing made against it will be reportable to a regulator. Those employees who the tribunal finds have victimised the successful claimant will be at risk of disciplinary and possibly regulatory process.
It is not only the parties whose interests are adversely affected by the long waiting lists for a hearing. The interests of the public are compromised as well. A hearing before an ET may be a far from perfect apparatus for the investigation of whether the claimant’s concerns were well founded, this is unsurprising because that is not its function. But the ET hearing will, in any event take place many months if not years after the events which the worker reported. The passage of time is likely to have rendered any remedial steps either futile or at least less effective. In the meantime the respondent is likely to take the stance that there was nothing of substance in the claimant’s concerns and indeed blind itself to the contrary possibility. The respondent’s primary focus will be on defending and defeating the whistleblowing claim, not to giving consideration to whether there actually was something it should have been concerned about.
The function of employment tribunal’s hearing PIDA claims
The purpose of the protected disclosure regime is to sanction detrimental treatment for making a protected disclosure. It is not directly concerned with whether the claimant worker’s disclosure was actually correct let alone with what should be done about the mischief which that worker says they were trying to draw attention to. Whilst regulation 14 of Schedule 1 to the 2013 ET Rules provides that if a claim contains an allegation that the claimant made a protected disclosure, the tribunal may, with the consent of the claimant, send a copy of the accepted claim to a regulator (being one of the regulators prescribed for the purposes of section 43F ERA) there is no mechanism for the regulator to report back to the Tribunal (or the claimant) as to what, if anything, was done as a result of the copy of the claim being received. And an ET which upholds a whistleblower’s claim does not have a power to make a recommendation equivalent to that in the section 124 of the Equality Act 2010.
If a worker wins their whistleblowing claim then that will have involved securing a judgment from the ET (or a concession by the respondent) that the claimant at least held a reasonable belief that the information they disclosed tended to show mischief or misadventure- past, ongoing or likely to occur in the future. But that is all. .The fact that an employment tribunal is not primarily concerned with the subject matter of any alleged whistleblowing was remarked upon by the APPG. It questioned whether the ET was the most appropriate institutional arrangement to redress and deter reprisals against whistleblowers but to also to address the wrongdoing that whistleblowers raised concerns about. Where an ET upheld a public interest disclosure claim, the actual wrongdoing was only rarely investigated. That, said the APPG, could cause ‘untold damage to society.’
Why are whistleblowing cases so lengthy and complicated?
Whether the whistleblowing legislation could be simplified- and whether that would lead to speedier hearings of whistleblowing claims may be debated. It is easy enough to say that it is complicated. It is rather more difficult to think of a way in which it could be made less complicated.
-qualifying and protected disclosures
In some cases the employer will accept that the claimant made a qualifying disclosure (i.e. one that satisfied the requirements of S43B of the ERA). However claimants, particularly those who do not have the benefit of advice from a legal practitioner who has experience of handling whistleblowing claims) are often tempted to allege that they made many disclosures and did so over a long period on a diverse range of subjects. Where this happens an employer may consider that it has to dispute at least some of those alleged disclosures even if the validity of others is accepted.
There is no short cut. Whilst ETs do routinely require that there be a full list of issues formulated at a Case Management Hearing: these vary in the degree of detail and precision with which they are drawn. At the full hearing the ET must make a ruling in relation to each and every alleged disclosure. What was actually said? What was the background or context for the statement? Was there a reasonable belief that what was disclosed tended to show one of the defined relevant failures, a form of misconduct or hazard within the six categories set out in S43B?[6] If reasonable belief is disputed the impact may be that the tribunal will need to hear evidence about the truth of the underlying allegation which the employer may wish to avoid in a public forum. In Darnton it was said that it that it may be relevant whether the allegations made by the claimant were in fact true[7]. But the extent of the investigation into underlying substance or lack of substance will depend on the way that the parties choose to run their respective cases, not on the public interest in the issue.
Since 2013 it has not mattered (at least for the purposes of establishing whether the disclosure was protected) whether the claimant made a disclosure in good faith. But whether they reasonably believed that the disclosure was being made in the public interest may be hotly disputed. A full examination of the underlying facts may be necessary for the ET’s consideration of that issue.
Where one or more of the alleged disclosures was not made to the employer but to the regulator or to someone else then further hurdles have to be surmounted in order for the qualifying disclosure to become a protected one. Section 43G, which will be the usual route to protection in relation to wider disclosures, is particularly complex. S43G has an exquisite elegance: its underlying policy of encouraging responsible whistleblowing is plain and understandable. But applying it is not straightforward.
The elaborate code for deciding whether a claimant is entitled to the legal protection afforded to a whistleblower could, at least conceptually, be replaced by a simple test of whether the Tribunal is persuaded that the claimant acted reasonably and responsibly in disclosing what they disclosed to the person they disclosed it to at the time and in the circumstances in which they made their disclosure. The writer would hazard a guess that if the legislation had been drafted in that way the law would probably have ended up with a series of judge made principles and guidelines which imposed a similar set of considerations as to those which are imposed by the PIDA inserted provisions of the Employment Rights Act.
Respondents may be tempted to try and short circuit the process by applying to strike out contentions that protected disclosure was made. But, as is the case with discrimination claims, such applications very often founder because of the fact sensitive nature of the necessary consideration.
-the reason why
If the employer either concedes, or the claimant establishes, that one or more protected disclosures were made then the issue will be whether the act or acts complained of (including, usually, dismissal, either actual or constructive) were done because of those protected disclosures or for some other reason which is sufficiently distinct from the making of a disclosure to be “separable” from it. The coherence and credibility of that other reason will have to examined carefully which means that the respondent is likely to be advised to call evidence from all of those of its employees who were involved in the relevant processes.
Can mediation work in whistleblowing cases
So the present scheme for protecting whistleblowers and encouraging whistleblowing is not working all that well in practice and it is difficult to see how that is likely be changed significantly in the foreseeable future[8]. Hearings do not take place for ages and when they do (and assuming the claimant wins) they are still not likely to result in remedying the mischief or misadventure which the worker was actually concerned about.
Can this depressing set of circumstances be avoided by going to mediation? Not always, but it may be well be worth trying. It is often pointed out that the Donovan Royal Commission aimed to make available a procedure which is “easily accessible, informal, speedy and inexpensive”[9] but (as David Lewis noted in his comprehensive consideration in 2013 of the role of ADR in whistleblowing disputes[10]) what are less frequently recalled are the words which followed immediately afterwards which identified a further aim, that of giving employers and employees “the best possible opportunities of arriving at an amicable settlement of their differences”. Donovan went on to state that bringing about such a settlement should be “a primary duty of the tribunal” and that “each hearing should be preceded by a ‘round table’ meeting in private between the parties and the tribunal, or one or two of its members , in order to settle.
Any suggestion in 2022 that on the first day of a Full Merits Hearing in any sort of claim (including one of whistleblowing) there should take the form of conflab of such a kind would be greeted with astonishment. However that is not say that it is not envisaged that promoting settlement in whistleblowing cases is not part of the overall scheme under which ETs operate. Whilst the rules governing ET procedure do not make any particular provision for Alternative Dispute Resolution in relation to protected disclosure cases rule 3 states that a tribunal ‘shall wherever practicable and appropriate encourage the use by the parties of the services of ACAS, judicial or other mediation or other means of resolving their disputes by agreement’ and (except where there is an in time application for interim relief) the claimant is also a requirement to go through the early conciliation procedures. Tribunals encourage parties to consider judicial mediation, which can be provided depending on the criteria adopted in the region where the case is to be heard[11].
Particular reasons for mediating whistleblowing claims
It has been suggested[12] that ADR may be of particular relevance in whistleblowing cases because of the desire of the employer to keep embarrassing matters away from a public hearing in a tribunal. And on the claimant worker’s side there may be a desire to avoid a public finding that they were whistleblower with the notoriety and harm to employment prospects such a judgment will bring. It is right to remark that since the presentation of any claim will result in a publicly available judgment of some kind (even if it is only a dismissal on withdrawal) the fact the claimant had asserted that they had blown the whistle will be there to see for anyone who is sufficiently interested to do an online search of the judgments database.
But there are more positive (and worthy) reasons why it may be in the interests of not only the parties but also the public interest for whistleblowing cases to be settled.
Firstly, and obviously, the costs, time and stress generated by the pre hearing and hearing process are reduced or avoided and both the claimant and the respondents (individual or corporate) can “move on”. The huge cost to the public of a multi day hearing will be also be saved.
But secondly the confidential and without prejudice nature of a mediated exchange between claimant and respondent with a mediator who understands the way that the law works[13] affords opportunities:-
- For the worker to explain what their real concerns were and why they held those concerns. Very often the pleaded case may not be clear or sufficiently focused (even if further information has been sought and given). This is particularly so in cases where the worker has not had legal assistance or their representatives are not well versed in the presentation of whistleblowing claims.
- For the respondent to understand and acknowledge at least elements of the claimant’s concerns, to explain the respondent’s perspective on them and to agree to give further consideration to the concerns, perhaps by agreeing an investigation by a mutually acceptable party (internal or perhaps external to the respondent).
- For the parties to reach an agreement as to the steps which will be taken once a further consideration or investigation has taken place and for an agreed statement as to those steps. There may be scope for discussion as to how whistleblowers will be treated by the employer in the future.
Now it may be retorted that agreements to give further consideration to concerns and to take steps in relation to what may be found after further investigation or consideration may be too amorphous to be the stuff of an effective settlement agreement. The writer would suggest that this difficulty may be exaggerated. And at the very least the opportunity (and challenge) presented by the mediation will bring forward the imperative to give the putative whistle-blower’s concerns serious scrutiny. If the respondent has a coherent and robust answer in relation to them then the claimant is more likely to be persuaded by a neutral party, i.e. the mediator, that, however sincerely the claimant’s belief that there was a wrong to right, that belief was in fact unfounded or at least exaggerated. On the other hand a respondent may well find that now the claimant’s case is more fully explained and understood it is able to agree that it had a foundation and that there are steps that can be taken to investigate it in more detail and take remedial steps.
It has been suggested that there additional challenges to mediating whistleblowing cases. It has been pointed out that the employer may be unwilling to enter a settlement which could be seen as having bought off a whistleblower and this may be a particular difficulty in the NHS (or it might be added) other public sector cases where there it may be problematic to obtain approval for a settlement.
It may be that in such cases a mediation will have to take place in stages, with a first meeting during which the parties seek to explain and explore the extent to which they can agree (albeit without prejudice) that the concerns may have had a foundation and a second stage, following application by the employer to the Treasury for authority, at which resolution of the claimant’s financial claims is attempted.
The respondent employer will usually be concerned to try to prevent any repetition or public ventilation of the worker’s concerns and poor publicity that might result from that. Section 43J ERA renders void any provision which purports to preclude the worker from making a protected disclosure[14] An agreed settlement, whether achieved by mediation or otherwise cannot muzzle a claimant and prevent them from making a further or wider disclosure of their concerns. However it is important to remember that 43J only renders void an agreement to make a protected disclosure, it does not prevent a party from agreeing to make a disclosure which is not protected. If the further or wider disclosure turns out not to satisfy the requirements of the relevant protecting provision then s 43J will not avail the worker[15].
The fact that an employer has agreed to investigate and, if necessary, act upon the claimant worker’s concerns will go to the reasonableness of a subsequent disclosure which might (absent such agreement) attract the protection of S43G and/or S43H and thus the efficacy of an agreement that the worker will refrain from further disclosure. Where, as part of or as a result of a mediation process the respondent employer shares information relating to the matters raised by a claimant then the knowledge that the claimant thus acquires may go to whether they will be able to establish that they reasonably believed that information they subsequently disclose or propose to disclose (and any allegation contained in it) is believed to be substantially true for the purposes of s43F, G and H.
A term by which a claimant agrees that a subsequent disclosure will not be protected under 43F, G or H is likely to be ineffective. But if the respondent employer has agreed to do that which the putative whistleblower would say it should have done in the first place this is likely to provide considerable comfort that further or wider disclosure is unlikely to be made because the worker will not want to subject themselves to the greater risk of a finding that that such a further or wider disclosure was unprotected.
More positively, of course, the objective of having a regime that protects those who make public interest disclosures will be achieved. The employer can take a fresh look at the worker’s concerns and act upon the results of that further consideration.
As we say in WLP[16] the flexibility afforded by the mediation process and possible outcomes may be ideally suited for problems concerned with relationships or behaviour, where the employee remains in employment, as may be the case with whistleblowers because of the scope for detriment claims other than dismissal. The parties can agree protocols about future behaviour in relation to such as how complaints will be considered, a written apology, an explanation of what took place. These are not things that can be done by an ET.
Nor can an ET structure its award in a way which takes advantage of tax saving opportunities, in particular in relation to costs. These aspects are likely to be of particular relevance to protected disclosure cases where quantum and costs are often considerably higher than in other areas.
Get on with it!
As to the timing of a mediation, there is a balance to be struck. There may be a temptation for the employer to delay mediating because, it may be thought, there will be a greater inclination on the claimant’s part to settle as time goes by. But that will not necessarily be so and the advantages of such posturing on the part of respondents will often be outweighed as the claimant’s losses mount and a determination to ‘have their day in court’ increases. There may be some merit in trying to get as more information from the claimant about their case by formal requests for further information and disclosure. But in general terms the sooner a mediation takes place the better, not only in the interests of the parties but also in the interests of the public. If there are information deficits on either or both sides then a mediator who has been instructed sufficiently far in advance of the mediation day can assist by encouraging the parties to exchange information which help them, and the mediator, to get to grips with the real points of contention.
Judicial mediation or private mediation?
Should the parties avail themselves of any offer of Judicial Mediation or go down the (more expensive) route of approaching a specialist mediator? Clearly it would be reasonable to expect that an Employment Judge who acts as a judicial mediator will have the relevant expertise in whistleblowing law. But whistleblowing claims are often complex and document heavy. Negotiating the fundamentals and then the fine tuning of an agreement is likely to be time consuming which, with the best will in the world, an Employment Judge sitting in a judicial mediation is just unlikely to have available. A joint opening session may be particularly useful in a whistleblowing case where the claimant may have a particular desire to directly communicate their thoughts and feelings to the respondent employer . Again the pressure on time may mean that a Judicial Mediator will be disinclined to allow for this.. A Judicial Mediator is very unlikely to be able to facilitate useful pre hearing exchanges of information (and to do any extensive pre- reading themselves). Nor can a Judicial Mediator be asked to provide further assistance after the mediation day has concluded. And, finally, although a judicial mediation fixture is likely to be achievable much earlier than a full merits hearing there still may be a significant delay. A specialist mediator will usually be available much more quickly.
Conclusions
Respondents to whistleblowing claims are likely to be disinclined to consider entering into mediation. Claimants may think there is little point in talking to an employer who has already disregarded their concerns and subjected them to victimisation or dismissal instead of listening to what they said. However, and all the more so given the present state of the waiting lists for a full merits hearing, there is much to be said for giving serious thought to mediation. It may well be able to put right that which has gone wrong in a much less painful and costly way. And a carefully mediated settlement may well lead to the public interest in mischief and misadventure being reported and acted being much more effectively served than a 10-15 day hearing before the employment tribunal.
[1] Barrister, ADR Group accredited Mediator, and co author, with Jeremy Lewis KC, John Bowers KC and Jack Mitchell of Whistleblowing Law & Practice, OUP 4th Edition 2022 (“WLP”). I am very grateful to Jeremy Lewis for his comments on the first draft of this article. The views expressed are mine as is the responsibility for any errors.
[2] It is right to say that that the backlog may be eased by the appointment of more Employment Judges and the continuing use of CVP.
[3] National employment tribunal user group minutes for 17 January 2022 Published 25 March 2022
[4] See the work on this area by Prof Kate Kenny of Queens University Belfast as cited in Chapter 1 para 1.17 of WLP.
[5] The special regime for NHS applicants, including a right to bring a claim of breach of statutory duty actionable in the ordinary courts allowing for the possibility of claims for injunctive relief so as to preserve the status quo pending determination of a whistleblowing claim either in the ordinary courts or in the tribunal is described in detail in Chapter 21 of WLP.
[6] The approach to the case management and hearing of whistleblowing claims is detailed in Chapter 13 of WLP.
[7] See the discussion of the case in Chapter 4 of WLP. This thinking has important implications for disclosure, see Gray v Merrill Lynch, Pierce, Fenner & Smith Ltd (UKEAT/0058/16/DM, 16 March 2016) and the Santander case discussed in Chapter 13 para 37 of WLP. See also Dodd v UK Direct Solutions Business Ltd & Anor [2022] EAT 44 (18 March 2021)
[8] Space does not permit a full consideration of the ways in which matters could be improved, see WLP Chapter 1 and also the Protect website for some suggestions. However, getting the government to engage with ideas for improvement is likely to be problematic.
[9] Report of the Royal Commission on Trade Unions and Employers’ Associations. HMSO. 1968. Cmnd 3623 page 156.
[10] Resolving Whistleblowing Disputes in the Public Interest: Is Tribunal Adjudication the Best that Can be Offered? David Lewis
Industrial Law Journal, Volume 42, Issue 1, March 2013, Pages 35–53.
[11] There has been a pilot compulsory ADR scheme in the Midlands West Region. In May 2021 the National Employment Tribunal User Group meeting was informed that the scheme was applied to cases listed for six days or longer and if directed, was applied compulsorily. It was listed to take place after witness statements had been exchanged and the judge undertaking the ADR would be provided with a small selection of relevant documents. The judge was empowered to give parties a neutral evaluation of the merits of the claim and the response. It was reported that between July and December 2020, 11 cases settled following an ADR hearing, 13 settled shortly before the ADR hearing and 20 did not settle. It was suggested that the pilot saved 180 hearing days. In the National Employment Tribunal user group minutes for 17 January 2022 it was noted that the pilot of ADR hearings was going well and the evidence pointed to a significant reduction in contested hearings.
[12] In WLP Chapter 13
[13] Writing from an American perspective in https://www.workplaceresolutions.com/press-room/whistleblower.html Richard D. Fincher argues that “Mediating whistleblower disputes requires specialized knowledge above and beyond what is necessary for ordinary employment mediation: unique knowledge of applicable law, burdens of proof, and the administrative law process, plus special sensitivity and patience toward the claimant.” This observation is apposite (with adaptation to the nomenclature) to the UK employment tribunal process.
[14] The operation and effects of S43J are considered in detail in Chapter 17 of WLP at paras 17.38-17.56.
[15] For an example of the effect and operation of s.43J where the employer successfully sought to restrain the making of wider disclosures contrary to a non disclosure (and termination) agreement with the worker see Pertemps Medical Group Ltd v Ladak [2020] EWHC 163 (QB) (06 February 2020) which is considered in detail in WLP in Chapter 17 para 17.198.
[16] Chapter 13, para 134
