Whistleblowing update: CEO who reported bullying found to be a whistleblower

Due to their high-ranking positions within an organisation, senior executives will often have unlawful conduct or workplace issues brought to their attention. It is important to remember that the person who made the initial disclosure to them may qualify for whistleblower protection. However, a recent Employment Tribunal case has demonstrated that a senior executive can also qualify for whistleblower protection where they pass on the worker’s complaints.

This blog reviews the case and considers some of the key points and takeaways for senior executives.

Recap: what amounts to a protected disclosure

In order for an employee or worker to make a protected disclosure, and qualify for whistleblower protection, the disclosure must:

1. Disclose information, including facts, rather than just making allegations.
2. Highlight a breach of a legal obligation and/or risk to health and safety. The individual must also reasonably believe that the information disclosed demonstrates the breach.
3. Be made to an appropriate or prescribed person or body, which is usually the employer.

In addition to the above, the individual must reasonably believe that the disclosure is in the “public interest”.  

If the disclosure meets the above conditions, it is likely to be a protected disclosure. The individual is then protected from dismissal or suffering a detriment because they have raised the protected disclosure. If they suffer detriment or are dismissed because of making the disclosure, they may bring a claim in the employment tribunal.

Cameron-Peck v Ethical Social Group Ltd and others

Background

The claimant was employed as the CEO of Wndr Social (“Windr”), which was one of two subsidiaries of Ethical Social Group.

The claimant commenced employment with Windr on 1 August 2021. Within weeks of starting, she received complaints from staff about bullying behaviour by the other subsidiary’s CEO, Ms Rhonda Alexander. On 3 September 2021, the claimant raised these concerns via WhatsApp with the Group CEO and Founder, Mr Graham Pullam. She informed him that people had contacted her in tears and confirmed she had also witnessed bullying and rudeness from Ms Alexander. She also wrote that poor choices were being made and people were being damaged.

On 4 September 2021, the claimant spoke with Mr Pullam on the phone and again mentioned her concerns. On 6 September 2021, she followed up on the call and sent an email to Mr Pullam setting out her concerns in further detail. In the email, she set out 19 points regarding Ms Alexander’s behaviour including that she tried to embarrass/humiliate colleagues and she adopted inappropriate and purposefully aggressive expressions and gestures during meetings. Mr Pullam did not respond to her email, nor did he follow up further with the claimant regarding the issue.

On 15 October 2021, the claimant covertly recorded a phone call with Mr Pullam. During the call, she asked Mr Pullam why he had not followed up on her complaints and queried why nothing had been done since she raised the issue. Following the call, the claimant was removed from certain meetings to minimise her contact with Ms Alexander.

On 18 October 2021, the claimant disclosed to the Chief People Officer that she had covertly recorded the call on 15 October 2021 with Mr Pullam. On 19 October 2021, she was suspended and removed from the company WhatsApp group. The claimant was not provided with the reason for her suspension nor the alleged misconduct. On 20 October 2021, she resigned but confirmed she would work her three-month notice period.

A disciplinary hearing was scheduled for 5 November 2021. However, before the meeting took place the claimant was informed by a colleague that HR were writing a new policy to state that a covert recording amounted to gross misconduct and that false accusations were going to be put to her at the meeting. On 28 October 2021, in light of this information, the claimant resigned with immediate effect.

The claimant subsequently brought a claim for automatic unfair dismissal on grounds of whistleblowing, including arguing that she had raised protected disclosures in relation to Ms Alexander’s bullying.

The decision

The tribunal concluded that the claimant’s disclosures relating to Ms Alexander’s bullying did amount to protected disclosures. This was on the basis that the claimant reasonably believed the disclosure tended to show that the health or safety of an individual had been, was being or was likely to be endangered. This was illustrated by the fact that she gave information about how she and other employees were upset by the conduct. This was also on the basis that the claimant reasonably believed the disclosures of information to be in the public interest, as they affected a group of employees who had been bullied by Ms Alexander. It was also confirmed that she had also made her disclosure to her employer and as such it was a valid disclosure.

The claimant argued that she had suffered several detriments because of her protected disclosures. She argued that the disciplinary meeting on 5 November 2021 was an attempt to entrap her and find some excuse to take disciplinary action. The tribunal agreed and went on to conclude that the reason or principal reason for the detrimental treatment (which constituted a breach of the implied duty of mutual trust and confidence) was that the claimant had made protected disclosures. As such, her claim succeeded.

Takeaways for senior executives

Whistleblowing claims tend to be very fact specific. However, the decision in Cameron-Peck v Ethical Social Group Ltd and others demonstrates that a senior executive can qualify for whistleblower protection where they disclose a breach of a legal obligation or health and safety risk that has been reported to them (assuming they meet the conditions of a protected disclosure listed above).

As stated above, senior executives can often find that workplace issues are reported to them. This recent decision should provide some comfort to senior executives that they will be protected under the law if they make a protected disclosure to the Board or other members of the senior leadership team. Senior executives should also check the terms of their employer’s whistleblowing policy when deciding whether any disclosure should be made under that policy. 

For those that work in a regulated environment, such as financial services or the legal sector, they should also consider whether any regulatory obligations arise as a result of the information they disclose. For example, in certain circumstances you may be required to make a disclosure to the regulator as well.

Whistleblowing is a complicated area of the law and senior executives should take advice at an early stage if they believe they have blown or wish to blow the whistle. Where a senior executive believes they have suffered a detriment or been dismissed after making such a disclosure, it is important that they seek legal advice straight away given the short limitation period for employment tribunal claims.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2024