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Employment Law Case Update: Whistleblowing and constructive dismissal

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Whistleblowing is a hot topic in light of the coronavirus pandemic, particularly relating to employees who have been placed on furlough leave.  The case of Robinson v Mind Monmouthshire serves as a salutary reminder of how to handle whistleblowing.

Miss Robinson was an Information, Advice and Assistance worker at mental health charity, Mind, from February 2016 to December 2017.

In August 2017, witnessing staff members, including two managers, laughing and imitating people with physical disabilities, Miss Robinson reported what she had witnessed to her line manager. The line manager invited her to a meeting with one of the accused managers, where the manager apologised, describing it as ‘harmless banter’. Miss Robinson was asked if she would like to raise a formal grievance but, advised that pursuing the matter “would cost staff their jobs”, decided not to.

Miss Robinson started to feel ostracised by her co-workers. In January 2017, it was brought to her attention that one of her colleagues had been making fun of her, saying she “deserved all she got”. She raised this with her line manager, who expressed the view that this was merely a “personality clash” between Miss Robinson and her co-workers. No action was taken.

In March 2017, Miss Robinson began to experience mental health issues and was subsequently diagnosed with recurrent depressive disorder. In June 2017, she was referred to Occupational Health for an assessment and several workplace adjustments were recommended to facilitate her return to work.

In July 2017, when attending a performance meeting with her line manager about the mimicking incident, Miss Robinson was advised to raise a formal grievance. She argued that the onus should not be placed on her because of the detrimental impact on her mental health.

Miss Robinson nevertheless raised a formal grievance, and later appealed against the outcome on the basis that it failed to address her concerns about being ostracised by co-workers. The original decision was upheld on appeal on the grounds that there was insufficient evidence to indicate that Miss Robinson had been “bullied or harassed for raising a complaint”.

On 1st December 2017, Miss Robinson resigned and presented claims of automatic unfair dismissal (for raising a public interest disclosure) and failure to make reasonable adjustments in light of her disability and victimisation.

The Employment Tribunal (ET) ruled in Miss Robinson’s favour on all three claims, finding that the conduct of the employees “was so serious and so in conflict with the apparent values of the organisation” which when raised by Miss Robinson did amount to a protected disclosure. The failure to deal with the behaviour and support Miss Robinson amounted to a breach of the implied term of trust and confidence and therefore constituted a constructive dismissal. The ET found Miss Robinson was dismissed because of her disclosure, thus making her dismissal unfair. The ET found the reasonable adjustments claim was supported by Mind’s failure to implement the recommendations in the Occupational Health report and to consider mediation or other alternatives to the formal grievance procedure.

This case is a stark reminder to employers on the implied duties of care, trust and confidence that is automatically owed to their employees. Employers have a duty to ensure that those in management positions are properly trained on how to handle whistleblowing complaints robustly, while ensuring the whistleblower is protected from any detriment. It also highlights the employer’s responsibility to, where appropriate, consider and implement reasonable adjustments, even if that means altering company procedures to the employee’s advantage. By insisting Miss Robinson undergo a formal grievance procedure whilst knowing the detrimental effect this would have on her mental health, Mind failed to meet this responsibility.  

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.