The rise of whistleblowing and interim relief

Rishi Sunak announced on 08 September 2020 that around £3.5 billion was fraudulently claimed by employers under the Coronavirus Job Retention Scheme (CJRS).

Against that background, we anticipate employees being much more active, in terms of “blowing the whistle”, because they are more generally aware of such claims and, in hard times, will be prepared to flag such concerns where they believe this type of wrongdoing has occurred, or is occurring.

Further, employees may report concerns because they and/or colleagues have been told by their employer that they must work in circumstances where they believe that a grant has been claimed by their employer under the terms of the CJRS.

There is also a potential for claims relating to breaches of health and safety, such as employees working in an environment that is not deemed ‘COVID-secure’ or perhaps where there is a lack of adequate personal protective equipment for staff, or where appropriate workplace risk assessments have not taken place. If an employee raises a concern that relates to these matters and is subjected to detrimental treatment as a result, an employer may be exposed to the risk of an employment tribunal claim.

Hand in hand with an increased level of whistleblowing activity comes an increased risk of employees seeking interim relief through the Employment Tribunals. Under the Employment Rights Act 1996, interim relief can be applied for in certain circumstances, in respect of unfair dismissal claims.

An employment tribunal has the power to grant the employee interim relief by making an order for the continuation of their employment, pending the final determination of their claims. The effects of this on an employer can be extremely severe, as this will come with a continuing obligation to pay the employee’s wages until their claims have been heard. Moreover, those costs are not refundable even in the event that the employee successfully defends the claims at the final hearing in due course.

This is particularly severe in current circumstances, where there is a huge backlog of claims within the Employment Tribunal System waiting to be heard.

In practice, interim relief is generally quite a rare occurrence. However, the coronavirus pandemic is presenting an increased likelihood of these type of applications.

An interim relief application needs to be made before the end of the seventh day following the effective date of termination (EDT) and can only be granted if the Employment Tribunal thinks that the claimant is ‘likely’ to establish at full trial, that the protected disclosure was the reason (or principal reason) for dismissal.

Although previously a rare occurrence, interim relief applications are increasing hand in hand with an increasing level of whistleblowing complaints in recent months due to the ongoing pandemic.

Please note, the information included in this update is correct at the date of publishing.