Could accusing your employer of bullying make you a whistleblower ?

For a worker to make a qualifying protected disclosure they must disclose information in the reasonable belief that a wrongdoing has already taken place, is currently taking place or is likely to take the place in the future (Employment Rights Act 1996 (s.43)). The wrongdoing in question is governed by a series of six categories, one of which is the breach of a legal obligation (s.43B(1)(b)).

The case of Parkins v Sodexho [2002] IRLR 109 widely interpreted breach of legal obligation and found it to include situations in which the employer was in breach of the worker’s own employment contract or statutory employment rights. Following this it could be argued that an allegation of bullying in the workplace could amount to a protected disclosure as the bullying itself would be in breach of the contract of employment – specifically the duty of good faith.

Employees who felt they were at risk of dismissal found that they could use the decision in Parkins to make underhand disclosures in regards to breaches of their own employment rights in order to later rely on the disclosure in an unfair dismissal claim. As a result s.17 of the Enterprise and Regulatory Reform Act 2013 amended the ERA 1996 so that any disclosure made on or after the 25 June 2013 would only receive qualifying status should it be ‘in the public interest’.

This significantly narrows the scope of available protection and Government guidance on the issue notes that personal grievance, including bullying, will not be covered by whistleblowing law. As a result of this unless the bullying takes the form of discrimination on the basis of a protected characteristic or the company is large and well known, it is unlikely that any such allegation will satisfy the public interest requirement.

AppleMarkRachel O’Connell, Director & Solicitor at Just Employment Ltd

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