Whistleblower at Cleveland and Redcar Borough Council – A Cautionary Tale

The case of a council worker who was harassed and then sacked for blowing the whistle on the Council’s management provides some useful lessons for businesses that have to deal with allegations from employees that the business is in failing to comply with a legal obligation. Pauline Scanlon was an equalities officer with Redcar and Cleveland Council until she was dismissed in August 2004. According to press reports, she now works in a call centre. 

The most striking thing about Mrs Scanlon’s claim initially is the size of the compensation awarded, which was reported to be over £440,000. There are also lessons to be learned about how to deal with whistleblowing issues. The tribunal decided that Mrs Scanlon was dismissed because she criticised the Council for breaching its own contractual equal opportunities policies and asserting that this was potentially discriminatory. The tribunal referred to Mrs Scanlon’s “intemperate language”, “zealotry” and “lack of tact and diplomacy” in pursuing equal opportunity issues. It emphasised that despite these issues it was satisfied that Mrs Scanlon had acted in good faith, commenting, “If policies designed to ensure equality are [being] set aside on the basis of management expediency then what was the purpose of her job?” In respect of the senior management of the Council, the tribunal had found that they had formed the view that the HR Manager that they wanted to appoint was the only suitable candidate for the job and they wanted to get on with that appointment. 

If an employee reports in good faith that they believe their employer has been involved in one of the protected categories of malpractice under the Public Interest Disclosure Act 1998 (such as in this case a breach of a legal obligation), any dismissal that is by reason of the protected disclosure is automatically unfair and it is also unlawful to subject the employee to any other detrimental treatment short of dismissal by reason of that disclosure. Employees will not lose that protection simply because they are intemperate or tactless in the way they make their disclosure. Similarly, an employee who makes an allegation in good faith of sex discrimination is protected from less favourable treatment as the result of having made that allegation. It is not necessary for the employee to prove that such allegations were true, only that they were made in good faith. This can be a difficult issue for HR advisers to deal with, especially when advising managers who “just want to get on with” the course of action they have chosen. 

The other potential lesson to be learned from this case is the need to consider carefully in each case whether policies and procedures should be contractual in nature. In Mrs Scanlon’s case, her complaint was a protected disclosure in any event because she alleged discrimination that was in itself a breach of a legal obligation. There could, however, be circumstances in which the question of whether a disciplinary procedure, for instance, was contractually binding or not would determine the issue of whether there was a breach of a legal obligation and therefore whether the whistleblowing provisions applied at all.