A recent employment tribunal case involving Age UK Plymouth outlines the importance of handling whistleblowing correctly in a charity setting. Whistleblowing-related dismissals potentially carry unlimited damages, so the stakes couldn’t be higher.
Terry Falcão advised Age UK Plymouth and outlines the background to the case, and what other charities can learn from it.
About the case
Age UK Plymouth, which is a brand partner of national charity Age UK, provides a variety of services to elderly people, including a day centre, advice and information, home and community support, carer support, meals and day care for dementia, as well as exercise and activity classes. Until December 2016, it also had a residential home for the elderly with a respite unit which could house 25 people.
Age UK Plymouth is set up with a board of directors; a group of volunteers also known as trustees. They are, in effect, a non-executive board with an elected chair that meet six times per year. Operationally the organisation was run by a chief executive officer (CEO) and an experienced second-in-command, along with other operational managers.
Following two successive “requires improvement” reports from the Care Quality Commission into the residential care home, the charity’s main stakeholder expressing serious concerns about the CEO and her deputy, and the staff threatening a walkout, the trustees were left with no option but to investigate the CEO. Based on the report following their investigation, the CEO was dismissed for misconduct.
Following her dismissal, the CEO of Age UK Plymouth brought a whistleblowing case against her employer. She claimed that she blew the whistle and that this was the real reason for her dismissal. The tribunal disagreed and found in favour of Age UK Plymouth.
The outcome for Age UK Plymouth was favourable, so what lessons can other charity trustees learn from this success? Where an organisation is inspected by the Care Quality Commission and is criticised, trustees need to:
- Scrutinise evidence of action by the CEO to rectify those matters.
- Follow-up and document actions listed in minutes of meetings with the CEO and others.
- Keep in close contact with operational managers in respect of all the critical issues to ensure that no single trustee is overburdened, while individual actions can be monitored.
- Meet staff on a periodic basis to discover any latent issues and allay fears. This can elicit valuable evidence that may otherwise be unobtainable.
- Agree on a strategy and direction so that tactics are decided from the earliest point and instigate a transparent investigation.
- Demonstrate fairness by involving internal and external panel members in the disciplinary processes.
- Ensure that the panel feels empowered in appeals to consider matters afresh and bring their own perspective to the evidence. No rubber stamping previous findings.
- Be drawn from diverse backgrounds and have a wide range of skills, if possible, including good knowledge of the particular field in which the charity operates.
- Have the time and ability to consider and absorb a vast amount of evidence.
- Document events accurately and secure evidence to corroborate the organisation’s defence and safeguard information in respect of the contract and activities of their most senior employees, rather than just the junior ones.
- Keep senior employment contracts secure and expressly permit retention/use of information.
- Ensure the charity’s governance permits it flexibility to act decisively.
- Understand the disciplinary processes and, if a claim is received, what the claim is about and how it is proven in the tribunal, and the importance of each person’s evidence.
- Be prepared to have their honesty and integrity attacked, and to deal with threats to damage the reputation of the organisation (an easy hit since trustees are always sensitive about this).
- Have nerves of steel in deciding whether to fight or settle unworthy claims. The trustees in this case were praised by the judge. They showed they were determined that staff, stakeholders and donors saw that they had acted correctly. There are consequences to settling with unworthy claimants, who are likely to breach confidentiality, usually on social media. There are also issues of morale if current employees know about pay-outs. Resistance to claims sends out a clear message that the organisation is not a soft touch.
Whistleblowing-related dismissals potentially carry unlimited damages. It is crucial that the board has immediate access to good quality unambiguous legal advice. This advice needs to be confidential; non lawyers’ advice can be accessed by the employee within litigation as it does not attract legal privilege.
Terry Falcao is an employment partner in our Exeter office. To discuss the content in this article or any other HR issue call 01392 210700 or email email@example.com.