Tribunal Report: Charities should have clear policies on whistleblowing

A St John Ambulance employment tribunal case highlights the risks charities face if workers make protected disclosures, says Victoria Willson

Victoria Willson
Victoria Willson

On 1 July, the Employment Appeal Tribunal handed down its judgement in the case of St John Ambulance v Mulvie. The merits of Mulvie's claims are still to be decided, but the case offers a useful reminder of the risks that charities face if a worker makes a protected disclosure, commonly referred to as 'whistleblowing'.

- The story

Mulvie was employed as director of fundraising at St John Ambulance until his resignation last year. He brought a number of claims against individuals, as well as St John Ambulance, one of which was that he had been subjected to detriments because he had made protected disclosures. The judgement does not say to what the alleged disclosures relate.

The law says that such disclosures must relate to the occurrence (or likely occurrence) of criminal offences, breach of any legal obligation (widely interpreted to include breach of an employee's own employment contract), miscarriages of justice, danger to an individual's health and safety, damage to the environment or a deliberate attempt to conceal any of the above.

In addition, they must be made in good faith, be believed by the discloser to be substantially true and be disclosed to someone the discloser reasonably believes to be the correct person. It is unlawful to subject a worker to any detriment (including dismissal) on the ground that they have made a protected disclosure.

One of the detriments alleged by Mulvie was the refusal of St John Ambulance's trustee board and its chair to communicate with him directly (its solicitor wrote to him), or to engage its grievance and/or whistleblowing policy (the charity suggested mediation). Whistleblowing claims must be submitted to a tribunal within three months of the date of the detriment or, if a detriment is extended, the last date of that period of time.

- The legal decisions

At a preliminary hearing, the employment tribunal determined that the question of whether Mulvie had submitted his whistleblowing claim in time should be considered at a future hearing, along with his other claims. St John Ambulance successfully appealed. The Employment Appeal Tribunal found that Mulvie's complaint had been presented out of time, but did not strike it out because the employment tribunal still needed to address whether it was reasonably practical for him to have submitted it in time and, if not, whether it would be reasonable for time to be extended.

- Lessons for charities

Charities should ensure that they have clear and robust grievance and whistleblowing policies that are communicated throughout the organisation and followed. It should be noted that failure to take an action can itself be a detriment: for example, failure to follow a grievance procedure. Charities should consider whether a claim was submitted in time - it might be possible to get it struck out at an early stage, saving time and money. However, tribunals have the power to extend time limits in certain circumstances and, therefore, the avoidance of claims should always be the primary objective.

Victoria Willson is a partner at Levenes Employment, third sector specialists

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