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How an employer should handle whistleblowing and harassment claims

PUBLISHED: 12:12 29 May 2019 | UPDATED: 12:12 29 May 2019

Darren Sherborne, Lead Practitioner at Sherbornes Solicitors Ltd

Darren Sherborne, Lead Practitioner at Sherbornes Solicitors Ltd

Will Pascall

The #METOO movement leaves Sherbornes' Lead Practitioner Darren Sherborne thinking about the treatment of whistleblowers, particularly in the NHS

You must have been living in a box if you haven't seen the #METOO movement picking up momentum, first of all in Hollywood, and then over here.

The movement has joined the far less well-publicised drive to root out victimisation for those blowing the whistle in what some might think of as a more universally important theatre, that of the NHS.

It all started before Harvey Weinstein, as the public sector, particularly the NHS, were getting called out on the practice of paying off those that raised concerns over the way people were treated. It is of course the fact that as a middle aged, overweight ginger man, I am less likely to be sexually harassed at work, than I am to be treated for a serious condition in hospital.

It follows therefore that the issues in hospital are closer to my heart (probably literally). It does not make them more or less important.

The fact is we have now become entwined on the horns of a dilemma. The drive has been for solicitors to be prohibited from including in settlement clauses any attempt to stop an employee reporting criminal behaviour to the police, or public interest issues to the relevant authorities. No right-minded person could object, could they? This is a double-edged sword, and we should be slow to get carried away with a simple answer to how such matters are dealt with.

In the event an employer is faced with a harassment claim, the first thing many employers do is panic. There are plenty of observers who are willing to condemn without evidence or hearing and reputations can be ruined. For this reason, there are employers who, if they can, will buy off a claim in order to make it go away. The problem is the prevailing attitude in many circles is that "making something go away" is seen automatically as a bad thing, and it isn't.

There are many examples where the victims of harassment just want the pressure to stop. I am not defending what causes the pressure, but many are not robust, bruised already and want to repair their life and rebuild.

Many do not feel able to with legal disputes hanging over them and a clean break allows them to move on.

Employers, of course, don't want to resolve a matter if they are going to pay sometimes large sums to complainants, only then to be prosecuted, rightly or wrongly, for the same allegation.

Regardless of whether they are guilty or innocent, the practical reality is that those who employ people will not pay reparation to alleged victims if that doesn't end the matter. Why should they?

The same argument could be levelled at an NHS whistle-blower. If someone knows a particular medicine is making people ill, and loses their job for raising it, then the trend is they should not be allowed to sign away their right to flag up the problem. As a user of the NHS, that seems to make sense to me.

However, this trend focuses on the victim, and places even more pressure on them. No one is focusing on the real wrongdoer, the person that tried to cover the problem up in the first place. The victim and the lawyer are told they cannot agree to keep quiet.

It's hard to think of a rule that will be more of a discouragement to people raising concerns. The employer won't resolve the matter, and the victim is stuck with a choice of walk away, or, well …walk away.

Sexual harassment claims are not the same as public interest disclosures in the NHS.

The law should of course prevent "Hush Payments" when a future public interest is at stake. The person in such a public interest case who raises the concern is not usually the victim. In harassment claims however, the person complaining is usually the victim, and they should be allowed to strike a deal which allows them to move on provided they choose to do so.

For more information, visit sherborneslaw.co.uk.

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