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Employees who report bullying and harassment of other staff may qualify as whistleblowers

In the case of M v Broxborn Bottlers Ltd, a pivotal legal battle unfolds, shedding light on the intersection of workplace ethics and legal obligations. At the heart of the matter lies a courageous act: an employee’s decision to speak out against sexual harassment witnessed within the company. Despite facing termination, the claimant asserts that their dismissal was an act of retaliation for blowing the whistle on misconduct.

In the case of M v Broxborn Bottlers Ltd the claimant was employed by Broxborn Bottlers Ltd between 7 November 2022 and 19 April 2023. On 13 April 2023, around five months into his employment, he 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. The claimant said he understood that the female employee was uncomfortable, and that he felt that it was inappropriate conduct.

When asked to name the individuals involved, he refused 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 said he did not feel he could name the individuals 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.

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. It noted that he had given evidence to the effect that he had heard rumours about the senior male manager’s conduct towards female employees and wanted to raise what he had witnessed to try to protect others in the workplace. Given these findings, 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.

This decision highlights that complaints about the mistreatment of others may amount to protected disclosures attracting whistleblowing protection. Although the complaints may, on their face, concern individual employment relationships, they may still engage matters of public interest.

It will likely be reasonable for an employee who witnesses an act of discrimination or harassment from a senior manager to say they believed that the disclosure was aimed at protecting other staff from such treatment in the future.

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.

It is important to identify when an employee might acquire whistleblowing protection. 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 flowing from that detriment and for injury to feelings. In the event that they are dismissed, they will be entitled claim automatic unfair dismissal 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 could also have a separate claim for victimisation under the Equality Act 2010 if they are subjected to detrimental treatment for having raised those concerns.

Source: Lexology

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