Barclays' employee faces an internal disciplinary over his part in a whistleblowing inquiry

It has been reported that the CEO of Barclays Bank, Jes Staley, is facing an internal disciplinary investigation over his involvement in a whistleblowing case. The employee reportedly requested that the name of a writer to an anonymous letter questioning the past conduct of a senior employee be uncovered.

The attempt to identify the person who sent the anonymous letter has reportedly been referred to the Financial Conduct Authority and the Prudential Regulation Authority. The employee at Barclays has allegedly apologised for his actions and revealed that he mistakenly did not consider the issue as one of whistleblowing.

This matter brings us to the question: what protection are whistleblowers offered when they make a protected disclosure?
The Employment Rights Act 1996 protects employees and workers who have made a protected disclosure.
A “protected disclosure” is a disclosure of information whereby a worker subjectively believes that one of the following has occurred, is occurring, or is likely to occur:

  • a criminal offence;
  • breach of any legal obligation;
  • miscarriage of justice;
  • danger to the health and safety of any individual;
  • damage to the environment; or
  • the deliberate concealing of information about any of the above.

The disclosure must be made in the public interest i.e. the worker or employee must have a reasonable belief that the disclosure is in the public interest.

It is automatically unfair to dismiss or subject an employee or worker to a detriment on the ground that he has made a protected disclosure. Examples of detriment treatment include pay cuts, limiting career prospects, or making demeaning or humiliating comments.

Individuals bringing whistleblowing claims do not need to satisfy the normal eligibility requirement of two years’ continuous employment which applies when bringing unfair dismissal claims. Moreover, the compensation cap placed on unfair dismissal does not apply to these claims, and as a consequence, an employer could face a cumbersome pay-out.

In Linghard v HM Prison Service [2005], in which the claimant reported serious concerns of prisoners being bullied and intimidated to her managers, he was awarded £477,600 which included £228,000 for future loss of earnings. Similarly, in Watkinson v Royal Cornwall Hospitals NHS Trust [2008], in which the Chief Executive of the Hospital made a protected disclosure regarding whether or not the trust was legally required to consult publicly on proposed changes to cancer services. The claimant was strongly in favour of the consultation and had obtained legal advice which highlighted that the trust would be acting unlawfully if they did not consult on the proposed changes. The claimant claimed unfair dismissal as a result of making a protected disclosure. The tribunal found in his favour and was awarded £1,201,453 which included £569,158 for future loss of earnings.

The whistleblowing charity, Public Concern at Work, has reported that the highest whistleblowing claim to date was £3.8 million.
There are various steps that an organisation can take to manage whistleblowing risks at work. This includes:

  •  Ensuring that a whistleblowing policy is in place which sets out the procedure to be followed by staff members when reporting whistleblowing concerns.
  •  Providing whistleblowing training to employees, particularly those at managerial level.
  • Appointing an independent whistleblowing officer whose duty should be to investigate concerns confidentially.

Given the financial implications a successful whistleblowing claim could have on an organisation, it is important to ensure that effective policies and procedures are in place to deal with whistleblowing complaints.

Leyton Legal