It can be difficult to judge the right time for a discussion with an employee whose employment is not working out. Get it wrong and the employee could use the discussion in a tribunal claim as evidence of unfair or constructive dismissal. However, according to a decision of the EAT, an employee could not argue that her employer’s offer to pay her £10,000 to give up her employment amounted to a bribe or blackmail so as to entitle her to claim the additional protection of the whistleblowing legislation which, among other things, disapply the service requirement for ‘ordinary’ unfair dismissal and removes the statutory limit on compensation.
In that case, the Claimant worked in the accounts department for Capita. There was evidence of deteriorating relations between the Claimant and Capita’s managers.
In order to complete the year-end accounts, the department head wanted the accounts team to agree to work overtime. The Claimant refused and in an email to her manager alleged that the work roster would breach the Working Time Regulations (WTR) which guarantee minimum rest breaks.
Three days after she sent her email, the Claimant was approached with a ‘without prejudice’ offer to terminate her employment in return for a payment of £10,000. The Claimant rejected the offer, writing another email stating that the offer amounted to a bribe to keep her mouth shut about her allegation of breach of WTR and blackmail that she would be sacked if she did not accept the offer.
The Claimant was dismissed. Capita cited breakdown in the working relationship as the reason for dismissing her.
The Claimant brought employment tribunal (ET) proceedings for ordinary and automatic unfair dismissal, alleging that her second email amounted to a whistleblowing complaint.
Although the ET ruled that the Claimant’s dismissal was unfair, it dismissed the additional whistleblowing claim, ruling that, although the Claimant’s email referred to bribery and blackmail, the Claimant did not have a reasonable belief that a criminal offence had been committed, nor was the complaint about blackmail made in the public interest.
The Employment Appeal Tribunal upheld the tribunal’s decision regarding the second email. Although an employee can reasonably believe that a criminal offence has been committed, even if that belief is incorrect, in the EAT’s view an offer of a sum of money to an employee to leave in circumstances in which relations between the parties had broken down is so far from blackmail that the ET were fully entitled to hold that the Claimant’s belief was not reasonable meaning that the email did not amount to a whistle blowing complaint.
The ability of employers to have discussions with employees to end employment was made easier by the introduction of ‘protected conversations’ in 2013 which allow employers to enter into off-the-record conversations with a view to agreeing the exit of an employee. However, the protection afforded by ‘protected conversations’ applies only to ordinary unfair dismissal cases, not discrimination claims or unfair dismissals where whistleblowing is alleged. It was for this reason that the Claimant was able to rely on the ‘without prejudice’ payment offer as evidence in her tribunal claims but, as we have seen, the tribunal (with whom the EAT agreed) decided that the Claimant’s email did not amount to a whistle blowing complaint.
Saha v Capita plc
Warning: this news item is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This news item is not intended to constitute legal advice in any specific situation. Readers should obtain legal advice and not rely on the information in this news item.