Whistle-blowing and the equality dimension of victimisation in the workplace

AuthorSam Middlemiss
Published date01 June 2017
Date01 June 2017
DOIhttp://doi.org/10.1177/1358229117712586
Subject MatterArticles
Article
Whistle-blowing and
the equality dimension
of victimisation in the
workplace
Sam Middlemiss
Abstract
A considerable am ount of attention h as been given to the gen eral law of victimi sation
under the Equality Act 2010
1
but scant consideration has been given to the equality
aspect of victimisation relating to whistle-blowing in the United Kingdom, and the
present article will address this. The term whistle-blowing relates to workers making
certain disclosures of information relating to their employer’s activities in the public
interest. Most workers in the public, private and voluntary sectors are protected from
victimisation by making a protected disclosure under the Public Interest Disclosure
Act 1998. However, only qualifying disclosures (defined below) are protected by the
Public Interest Disclosure Act 1998. The protection against victimisation covers unfair
dismissal and an action for suffering a detriment. However, this article will concentrate
on the latter. In the process of considering the legal rules in the United Kingdom, the
human rights dimension of cases will be considered as will comparison with the law in
the United States.
Keywords
Whistle-blowing, detriment, UK law, US law, comparison
Introduction
Whistle-blowing has been usefully defined by consumer activists in the United States
2
as
...an act of a man or woman who, believing that the public interest overrides the
Robert Gordon University, United Kingdom
Corresponding author:
Sam Middlemiss,Robert Gordon University,76Garthdee Rd, AberdeenAB10 7AR, United Kingdom.
Email: s.middlemiss@rgu.ac.uk
International Journalof
Discrimination and theLaw
2017, Vol. 17(2) 137–156
ªThe Author(s) 2017
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229117712586
journals.sagepub.com/home/jdi
interest of the organization he serves, blows the whistle that the organization is
(involved) in corrupt, illegal, fraudulent or harmful activity’. Although the definition
was provided some considerable time ago, it is still highly relevant to the position in the
United Kingdom. Employment legislation
3
sets out the framework in which employees or
workers who believe they have been badly treated because they have made a complaint
about the behaviour of their employer can have their rights protected.
4
Consideration of
these rights by a judicial body is normally triggered when an employee formally seeks a
remedy or redressfrom an employment tribunal for harm or damagehe or she has suffered
in this context.
5
Accordingly where an employee is harmed because he has blown the
whistle (and made a protected disclosure), he or she will have a claim for victimisation.
6
Legal framework
The legal rulesdealing with protectionfor whistle-blowing arerelatively clear but, because
of closely defined thresholdrequirements in the legislationare not exactly straightforward.
The range of workers covered by the legislation is broad but the nature of permitted
disclosures is closely defined. Also evidential requirements relating to a public interest
element in the disclosure and a causative link between the disclosure and subsequent
victimisation can complicate things further for a claimant, as will be seen.
Coverage of legislation
The laws apply to employees and agency workers.
7
Workers who raise concerns about
bullying and harassment by work colleagues are also protected, provided they fall within
the definition of a worker provided by section 230(3) of the Employment Rights Act
1996 (ERA).
8
However, it is important to note that the protection of the Act is not limited
to those covered by the definition of workers set out in ERA as the following quote
outlines: ‘Whistleblowing protection covers all “workers.” This term is given a special,
extended meaning for the purposes of the whistleblowing regime, which is wider than the
general definition contained in section 230 of ERA 1996 ...
9
However, there are limits
to the extended definition. For example, job applicants who have not yet entered into
contractual relations
10
(see BP plc. V. Elstone) are excluded as are persons working for
the security services and other individuals such as volunteers and interns.
11
In Clyde &
Co LLP v. Bates Van Winkelhof,
12
Ms Winkelhof was a solicitor who contended that she
was ejected from the firm after blowing the whistle on them while working in Tanzania.
The Court of Appeal
13
held that the claimant could not pursue a whistle-blowing claim
because she was a limited liability partner and they were not workers for the purposes of
Public Interest Disclosure Act (PIDA).
14
The Supreme Court
15
on appeal overturned the
earlier decision by a majority of 3 out of 5. Lady Hale stated that
16
;
it is common ground that the appellant worked under a contract personally to perform any
work or services. It is now common ground that she provided those services for the LLP. It
is also now common ground that the LLP was not her ‘client or customer’. The Court of
Appeal accepted that there was a ‘powerful case’ that the definition was satisfied. How then
can it be said that she was not a ‘worker’ for this purpose?
138 International Journal of Discrimination and the Law 17(2)

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