Wednesday 25 April 2001
An employment tribunal in Liverpool has awarded £140,000 to a branch manager who was victimised after blowing the whistle on a senior executive for sexual assault and gross indecency. But the case is shrouded in controversy as the identity of the employer - whose obstructive and misleading conduct was castigated by the tribunal - has been removed from the public record under tribunal secrecy rules.
The whistleblower, in the case of Mr A v X Limited, says "I was forced out because I was not prepared to see my staff subjected to such degrading and abusive conduct. My employer tried to cover the whole thing up because of the embarrassment. Even though I have been fairly compensated I doubt that a company of this size will even notice this award. With its name being blacked out, I don't see how any lessons will be learned. It makes no sense to me why the tribunal should be required to cover-up for a company that it says behaved so badly."
Calling for an urgent overhaul of tribunal secrecy rules, Public Concern at Work, the whistleblowing charity, says "The public interest is never served when justice is smothered in secrecy. There is no justification for an administrative rule that blacks out the names of companies that punish whistleblowers in this way."
"Acts of gross indecency"
A distressed member of staff rang Mr A, the manager of one of the company's high street branches, last February. She had told him that a senior executive had "grabbed her breast, put his hand up her skirt, dropped his trousers, exposing himself and that he had made lewd and disgusting comments". As she was very worried that she would lose her job and what her husband would say, she begged Mr A to say nothing. Within a fortnight the woman contacted Mr A about another serious assault and an act of gross indecency. Another staff member then told him that the executive had sexually harassed her as well. After some discussion, Mr A reassured both women that the matter would be dealt with properly.
Shooting the messengers
When Mr A reported the matter he was warned that if he said anything to anyone he would be dismissed for gross misconduct and one of the personnel officers told him not to stir things up as "what one person might perceive as harassment, another might not". Mr A made it plain he thought that this was not a fair assessment of these incidents and that the matters were serious enough to consider calling in the police.
When the victims were interviewed, the personnel officer threatened them with dismissal and an action for slander. She also suggested that they should not place any trust in Mr A and insinuated that he had put them up to making the allegations. A fortnight later Mr A was told that he and the first victim were to face disciplinary charges. The Tribunal held that these attempts to discipline Mr A and the victim were "done purely and simply to keep them from disclosing information to their fellow workers, let alone to anyone outside." It concluded that "Instead of complimenting the applicant on his proper behaviour, he was subjected to a detriment."
When Mr A asked to appeal against the warning, he received no reply. A few weeks after his doctor had put him on sick leave for stress, he resigned after the personnel officer threatened him with further disciplinary action.
The Tribunal found that the alleged abuser initially took sick leave before being allowed to resign on three months' notice.
The Tribunal also placed on record its strong criticisms of the company. It said it had "set out to mislead" the Tribunal and that it appeared to be "at pains to restrict any information which might be relevant coming to the attention of the Tribunal". It also described the unnamed personnel officer as "completely lacking in credibility" and "mendacious". Concluding that the companys behaviour had been "totally inappropriate," the Tribunal made an award of £8,000 in aggravated damages.
Government urged to act now
Public Concern at Work's director, Guy Dehn, says "Parliament passed the Public Interest Disclosure Act to encourage whistleblowers to challenge serious wrongdoing and cover-ups. This case illustrates how administrative rules are subverting the very purpose of the Act".
Calling on the Government to ensure that tribunal secrecy rules are revised to take account of the public interest, Mr Dehn continues, "The Government should amend these rules while they are in Parliament or at the least should fulfil its repeated pledges to review tribunal secrecy."
The Government's pledges to review tribunal secrecy were made in response to a High Court ruling obtained by Public Concern at Work on the separate point that the public had a right to know about claims brought under the Public Interest Disclosure Act. The Government rushed through temporary regulations during last summer's recess to reverse the Court's ruling, while promising that the whole issue would be reviewed within months. Although the DTI Ministers have yet to announce the start of the review, the temporary controls are still in force and reappear in new draft regulations before Parliament.
The secrecy rule
Administrative rules require tribunals to delete from the published decision any matter which is likely to lead members of the public to identify any person affected by or making an allegation about a sexual offence. As drafted, this rule makes no reference to any other public interest and as this decision shows can require the name of a substantial employer to be deleted.
The whistleblower, who represented himself in the hearing, had agreed to a reporting order restricting publication of evidence identifying those involved but only until the decision was published. When considering the use of restricted reporting orders, the higher courts have emphasised that tribunals must carry out a balancing exercise considering the rights of the press to communicate information. In one recent case the Employment Appeal Tribunal ruled that "it was not the intention of Parliament to provide the protection of anonymity to corporate respondents". In another, the High Court stated that that even if naming the employer led to the identification of protected individuals, this risk was "far outweighed by the public interest in the public knowing at the time of the evidence" the identity of the employer involved.
By contrast this administrative rule, which comes into play only once a restricted reporting order has ended, reverses this public interest finding and has no balancing test. In this case it seeks to stop the public from knowing the name of an employer which covered-up serious sexual assaults, hounded a good man out of his job, and misled the Tribunal so seriously that aggravated damages were awarded.
Public Concern at Work concludes that this administrative rule is an unjustifiable attempt to extend reporting restrictions.
Note to Editors
Public Concern at Work, an independent charity, promoted the Public Interest Disclosure Act. Copies of this Tribunal decision are available on request. We would be grateful if you could give the number of our free helpline 020 7404 6609 or our website www.pcaw.co.uk at the end of any piece based on this release.
Guy Dehn on 020 7404 6609
(out of hours) 020 8442 4251
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