How Can Reporters and Others Affected by The Whistleblowing Process be Compensated for Psycho-Social Harm?

ABSTRACT

1. INTRODUCTION

It is now well established that, under Part IVA of the Employment Rights Act 1996 (ERA 1996) compensation for injury to feelings is available when workers suffer retaliation after raising concerns about wrongdoing.¹ This article is premised on the assumption that whistleblowers may suffer far more than injury to feelings and considers how and when damages for personal injury might be awarded. It also discusses the remedies available to others who might be adversely affected by the whistleblowing process. These others could be, inter alia, bystanders (people who have observed wrongdoing and/or retaliation but not reported it) and perpetrators (those who cover up wrongdoing or victimise a whistleblower).² The European Union Directive on Whistleblowing (henceforward EU Directive)³ goes further than UK law by requiring Member States to protect those who assist whistleblowers (referred to as ‘facilitators’) as well as ‘third persons who are connected with the reporting persons and who could suffer retaliation in a work-related context, such as colleagues or relatives of the reporting persons.⁴ However, like the UK, it does not specifically protect bystanders or those instructed by their employer to retaliate against the whistleblower. Importantly, although the Recital to the Directive contemplates retaliation coming from a number of sources, the issue of vicarious liability is not discussed at all. By way of contrast, section 47B (1B) of the ERA 1996 provides that an employer may be vicariously liable for harm caused by a worker who has been instructed to take reprisals against a claimant.

In section 4 of this article, we outline some possible forms of reprisal and the impact they may have on the physical and mental wellbeing of reporters of concerns and others caught up in the whistleblowing process. We focus in particular on mental ill-health and note that the Judicial College Guidelines on General Damages⁵ draw a distinction between psychiatric and psychological damage generally and cases where, following an event that created psychological trauma, post-traumatic stress disorder (PTSD) is the sole psychiatric condition. We argue that, while employment tribunals are willing to acknowledge injury to feelings in their awards, unfamiliarity with the evidence that serious psychiatric damage can also be caused may result in a failure to provide just and equitable compensation as required by Part IVA of the ERA 1996.⁶

2. THE CONSEQUENCES OF DISTINGUISHING DETRIMENT FROM DISMISSAL IN WHISTLEBLOWING CASES

The words ‘whistleblower’ and ‘whistleblowing’ are not used in ERA 1996 but commonly accepted definitions are contained in International Organisation for Standardisation guidelines⁷. Part IVA of the ERA 1996 provides that workers who make a qualifying disclosure to an appropriate recipient have the right not to suffer detriment (including dismissal) for doing so. If a person who has made a protected disclosure suffers retaliation, unlimited compensation can be awarded by an employment tribunal.⁸ The courts have recognised that whistleblowers may suffer injury to feelings and employment tribunals have considered a variety of forms of such injury where detriment short of dismissal has been established. Many of the matters taken into account in assessing the severity of an injury could also be seen as elements of PTSD and it is argued that employment tribunals should be readier to acknowledge this in the level of awards they make.

Although financial losses resulting from damage to health can be compensated in an unfair dismissal claim,⁹ awards for injury to feelings cannot.¹⁰ Thus it would seem that whistleblowers may obtain greater compensation if they can demonstrate reprisals short of dismissal. Indeed, even if the retaliatory actions would clearly amount to a constructive dismissal, a worker may be tempted not to resign in response as this may be more financially beneficial. The situation is made even more complicated by section 49(6)of the ERA 1996 which provides that workers who are terminated but are not employees cannot recover more compensation than employees who have been unfairly dismissed.¹¹

In International Petroleum Ltd & Ors v Osipov & Ors¹²Simler P (as she then was) held that the exclusion of a complaint of detriment in respect of ‘dismissal (within the meaning of Part X)’ only excluded ‘detriments amounting to unfair dismissal claims’ and therefore referred only to claims by an employee against the employer for unfair dismissal. In the judge’s view, Section 49(6) of the ERA 1996 would not apply to claims that a co-worker was involved in bringing about a claimant’s dismissal. Thus, a distinction is to be made between claims based on the dismissal itself and other detriments which precede the dismissal.¹³ This possibility was vividly illustrated in Osipov by Underhill LJ. In this case, he gave the example of a whistleblower who developed ‘a serious long-term mental illness as a result of being victimised by his or her colleagues for having made a protected disclosure, with the result that the employer has eventually to dismiss them on ill-health grounds … the dismissal is likely to be fair, but it would be extraordinary if the claimant was not entitled to claim ….for the full financial loss suffered as a result of the loss of their job’.

Section 47B(1A) of the ERA 1996 gives workers the right not to be subjected to a detriment imposed by another worker or agent of their employer on the ground that the complainant had made a protected disclosure. However, the offending act or omission must have occurred ‘in the course of that other worker’s employment’ or, in the case of an agent, with the employer’s authority. Given that Section 47(1)(B) of the ERA 1996 makes the employer also liable in these circumstances, both a respondent worker and the employer would have a strong interest in contending that the detriment occurred outside the employment relationship. Similarly, an employer could avoid liability if it could show an agent acted without authority. Nevertheless, subject to the ‘reasonable steps to prevent’ defence available to employers in Section 47B(1D) of the ERA 1996, whistleblowers will normally find it financially advantageous to allege that their employer was vicariously liable for reprisals inflicted by their workers or agents. Importantly, Section 47B(1C) of the ERA 1996 acknowledges that retaliation may not be instigated by the employer by stating that, for these purposes ‘it is immaterial whether this is done with the knowledge or approval of the worker’s employer’.

3. TRAUMA AND POST-TRAUMATIC STRESS DISORDER

Since the concept of trauma straddles both the physical and the emotional, scholars have argued that we need to take into account its ‘biological and physiological, psychological and social impacts’.¹⁴ It goes without saying that trauma may be suffered as a result of a variety of employment and non-employment experiences. However, the trauma label is particularly important in the context of whistleblowing retaliation where the nature of the injuries can locate the problem internally within the victim, normalise distress and suffering, and transform injuries into things that arise as an ordinary consequence of the circumstances.¹⁵ Before we examine the harm that might be caused by particular types of reprisal, we will briefly describe what the highly researched psychiatric concept of PTSD involves.

The American Psychiatric Association use the following criteria for the diagnosis of PTSD -¹⁶

Criterion A (one of the following must be satisfied)- the person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, in the following way(s): direct exposure; witnessing the trauma; learning that the trauma happened to a close relative or close friend; indirect exposure to aversive details of the trauma, usually in the in the course of professional duties.

In the context of whistleblowing, although witnessing wrongdoing can also cause harm, it is the retaliation for reporting the wrongdoing that is more likely to be associated with ‘serious injury’. It is noteworthy that the International Statistical Classification of Diseases and Related Health Problems (ICD) uses the following slightly more inclusive definition: ‘Exposure to a stressful event or situation of exceptionally threatening or horrific nature likely to cause pervasive distress in almost anyone’.¹⁷ From thereon, the ICD and the DSM are similar.

Criterion B (one of the following must be satisfied)- the traumatic event is persistently reexperienced, in the following way(s): unwanted upsetting memories; nightmares; flashbacks; emotional distress and physical reactivity after exposure to traumatic reminders.

This criterion may easily be satisfied when a whistleblower reflects on their experience.

Criterion C (one of the following must be satisfied)- avoidance of trauma-related stimuli after the trauma, in the following way(s): trauma-related thoughts, feelings or reminders.

Whistleblowers are likely to avoid the people and places that remind them of both the wrongdoing and the retaliation that followed their disclosure. When they are required to have contact with wrongdoers or retaliators whistleblowers are more likely to experience the symptoms described in Criteria D and E, namely -

Criterion D (two of the following must be satisfied)- negative thoughts or feelings that began or worsened after the trauma, in the following way(s): inability to recall key features of the trauma; overly negative thoughts and assumptions about oneself or the world; exaggerated blame of self or others for causing the trauma; negative affect; decreased interest in activities; feeling isolated; difficulty experiencing positive affect.

Criterion E (two of the following must be satisfied)- trauma-related arousal and reactivity that began or worsened after the trauma, in the following way(s): irritability or aggression; risky or destructive behaviour; hypervigilance; heightened startle reaction; difficulty concentrating; difficulty sleeping.

Criterion F -the symptoms last for more than a month.

It will not be difficult for whistleblowers to meet Criterion F and Criterion G is likely to be satisfied as a result of disruption to family and collegial relationships.

Criterion G - symptoms create distress or functional impairment (e.g., social, occupational).

Criterion H - symptoms are not due to medication, substance use or other illness.

Undoubtedly a PTSD diagnosis is useful to document injury and underpin a claim for damages. However, we should not lose sight of the fact that the DSM criteria exist for the purpose of diagnosing diseases and cannot be used to decide what injuries should be legally acknowledged or what compensation should be available. Thus, it is not asserted here that in order to get damages for psychiatric harm, those injured through involvement in the whistleblowing process need to demonstrate that they have suffered from PTSD. Nevertheless, establishing some of the PTSD symptoms may be helpful in proving the severity of the psychological injury and in focussing attention on the nature of the respondent’s actions that might have caused them.

4. PARTICULAR FORMS OF REPRISAL AND THEIR CONSEQUENCES

Article 19 of the EU Directive illustrates possible types of retaliation that might be suffered by disclosers of wrongdoing, but no such list exists in the ERA 1996. Although the ways in which detriments may be imposed are as broad as the employer’s imagination, we consider here the most common forms of reprisal. One obvious type of retaliation that might be anticipated by whistleblowers is bullying.¹⁸ It is common for bullying to be regarded as an example of harassment¹⁹and it is the latter that tends to be outlawed in both employment and non-employment situations.²⁰ The UK’s Advisory, Conciliation and Arbitration Service (ACAS)defines bullying as: ‘unwanted behaviour from a person or group that is either: offensive, intimidating, malicious or insulting; an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone’.²¹ Thus the retaliatory behaviours outlined below may all be part of the bullying process. Indeed, releasing personally identifiable information about the whistleblower on the internet with the intention of encouraging retaliation (known as doxing²²) could be regarded as cyber-bullying. Such potentially global exposure will be particularly distressing for those who wish to remain anonymous and makes the person and their family a target for threats, stalking, violence and other forms of harassment.

According to the ACAS, ‘to be harassment, the unwanted behaviour must have either: violated the person’s dignity; created an intimidating, hostile, degrading, humiliating or offensive environment for the person’.²³ Although bullying and harassment are frequently confused, it is suggested that while bullies tend to operate out of sight, harassers may well target the victim in front of others. Sadly, although harassment may be easier to identify,those who report it may find that they are bullied for doing so.²⁴ Bullying and harassment may take place as a result of complicity in the wrongdoing or in an attempt to cover it up. Both can contribute to traumatic stress which itself can impair functioning and have lasting psychological consequences. Indeed, since bullying can be regarded as an act of emotional if not physical violence, it can be associated with the PTSD criteria, which involve direct experience of and repeated exposure to a traumatic event.

‘Mobbing’ is often associated with bullying and occurs where perpetrators of wrongdoing directly or indirectly apply pressure on others to collude against a whistleblower or spy on them.²⁵ The isolation experienced by the whistleblower can result in anxiety and depression but the collaborators may also suffer ‘moral injury’ when they realise that they have harmed a person at the instigation of someone in a position of authority over them.²⁶ Indeed, Garrick et al use the term ‘administrative mobbing’²⁷to describe the situation where conformists fail to acknowledge the wrongdoing, conspirators want to ally with the perpetrators and bystanders are scared to act. When mobbing results in the whistleblower being hypervigilant and hypersensitive it might be argued that they are experiencing symptoms analogous to the PTSD criteria of hyperarousal and alertness.

Whistleblowers might also experience ‘gaslighting’ as part of the retaliation process. This word, which is now used in common parlance, is defined by Psychology Today as ‘an insidious form of manipulation and psychological control. Victims of gaslighting are deliberately and systematically fed false information that leads them to question what they know to be true, often about themselves’.²⁸ As a consequence, the individual may become confused, uncertain of their emotional or mental stability and lose confidence and self-esteem. They may then suffer ‘imposter syndrome’ as they have been coerced into thinking that they are incompetent and may be exposed as such.²⁹ Thus Garrick and Buck maintain that ‘gaslighting’ might fall within the National Institute of Mental Health definition of a traumatic event i.e. it is ‘a shocking, scary, or dangerous experience that can affect someone emotionally and physically’.³⁰ It is also worth noting that ‘gaslighting’ often precedes other forms of retaliation. Indeed, if the whistleblower’s process of reasoning is questioned in front of their co-workers, this may make it easier to justify mobbing or other types of reprisal.

Marginalisation can occur where whistleblowers are relocated and/or moved to less important tasks.³¹ When physical and/or social marginalisation is deliberately initiated by perpetrators of wrongdoing or conspirators it can undermine a person’s sense of belonging. This can result in feelings of alienation, depression and anxiety which in turn might cause psychological damage and even suicidal ideation. Indeed, fear of marginalisation (or other forms of retaliation) might put pressure on co-workers to become bystanders. Shunning is closely related to marginalising but focuses on social exclusion from a workgroup rather than physical isolation. One motive for shunning is that it allows co-workers to distance themselves from the whistleblower so that they do not suffer the same reprisals. However, as previously mentioned, bystanders can also experience emotional harm.³² In this context, ‘ghosting’ refers to ignoring the concerns raised by the whistleblower and is a passive approach to shunning. As a result of engaging less often with others, those who experience ‘ghosting’ are likely to have lower levels of trust and higher levels of stress. More generally, ostracism is associated with low self-esteem and depressive disorders.³³

Devaluing is another commonsense word and, as Alford has pointed out,³⁴ the aim is to divert attention away from the allegations of wrongdoing and to focus instead on the whistleblower’s inadequacies, mental health or emotional stability. The process of devaluing the whistleblower can take many forms, including rigging performance ratings. However, anxiety and stress may objectively have affected performance and, as noted by Garrick and Buck, ‘performance factors are related to occupational impairments as indicators for PTSD criterion G: functional significance because of the significant level of distress caused at work’.³⁵ It goes without saying that poor performance ratings, contrived or otherwise may lead to termination of employment and affect future job prospects. Another aspect of devaluation is the issue of ‘bad-mouthing’ workers suspected to be whistleblowers. Not only might this result in a successful claim for detriment based on institutional management ill-will³⁶but whistleblowers who learn about this antilocution may suffer stress and anxiety about what its consequences might be.³⁷

One method likely to induce poor performance is ‘double-binding’. Here the whistleblower is set up to fail by being given a new but impossible task and are then disciplined for incapability.³⁸ Victims can suffer confusion and anger when they realise that they have been trapped in a no-win situation and these feelings arguably fall within PTSD criterion E: alterations in arousal and reactivity. Another mechanism for diverting attention from reports of wrongdoing and undermining career prospects is where unjustified allegations are made with the aim of damaging a whistleblower’s credibility at the workplace and/or their professional standing outside of it.³⁹ Indeed, as Lennane pointed out several decades ago, a common form of organisational retaliation is accusing a whistleblower of being mentally ill or insisting that they submit to a psychiatric assessment.⁴⁰

Although paragraph 39 of the Recital to the EU Directive to a limited extent addresses the issue of discrimination at the point of hiring,⁴¹ this matter is not dealt with in the UK legislation save in respect to the National Health Service.⁴² Indeed, it would seem that whistleblowers in the UK can be boycotted by prospective employers on the grounds that they have demonstrated a willingness to complain to a court or employment tribunal. The situation where a person loses the ability to make a living as a result of boycotting or reputational damage can ruin both their physical and mental health by undermining their sense of identity and belonging. Indeed, career blocking might fall within PSTD criterion G: functional impairment because of unemployment, threat of job loss and other stressors related to the work environment. More insidiously, the fear of unemployment may justify others remaining silent bystanders.

5. INJURY TO FEELINGS AND PSYCHIATRIC ILLNESS

As a matter of principle, psychiatric damage and injury to feelings are distinguishable but in practice they have not always been clearly separated. According to Recorder Underhill (as he then was) in HM Prison v Salmon⁴³

In a given case it may be impossible to say with any certainty or precision when distress and humiliation that may be inflicted on the victim of discrimination becomes a recognisable psychiatric illness such as depression. Injury to feelings can cover a very wide range. At the lower end are comparatively minor instances of upset or distress. But at the other end the victim is likely to be suffering from serious and prolonged feelings of humiliation, low self -esteem and depression; and in these cases, it may be fairly arbitrary whether the symptoms are put before the tribunal as a psychiatric illness, supported by a formal diagnosis and /or expert evidence.

More recently, in a case involving harassment and racially aggravated conduct, the Court of Appeal upheld the view of the trial judge that damages of £12,500 for personal injury and £10,000 for injury to feelings were appropriate. The appellate court evaluated the genuine psychiatric harm suffered, including anxiety, panic attacks, and an anxiety disorder directly stemming from the harassment. The Judicial Studies Board Guidelines were used to determine appropriate damage brackets for psychiatric injury and the case was categorised as being between moderate and moderately severe. The separate awards by the trial judge for psychiatric injury and injury to feelings were upheld as appropriate in order to avoid double recovery and provide clarity in the assessment.⁴⁴

Almost twenty years earlier, in Alexander v Home Office⁴⁵, May LJ opined that injury to feelings is likely to be of a relatively short duration and be less serious than physical injury to the body or mind. However, as we discuss below, there can be little doubt that emotional trauma can have physiological consequences as well as affect mental health. Thus, those adversely affected by the process of whistleblowing may seek damages for physical harm as well as emotional suffering. Indeed, the medical literature is robust with research that identifies stress-related conditions, such as gastrointestinal, autoimmune, musculoskeletal, and neurological disorders.⁴⁶

The Vento⁴⁷ guidance on the three bands for awarding compensation for injury to feelings in discrimination cases has been applied to protected disclosure litigation. Since the aim is not to punish the employer, the seriousness of the behaviour is relevant only in so far as it impacts the particular claimant. In the Vento case, a teacher who was sacked after making a protected disclosure suffered serious health issues and loss of confidence because of the manner in which he was treated and these negatively affected his career prospects. In Local Government Yorkshire & Humberside v Shah⁴⁸a project director’s concerns were not investigated and she was deeply humiliated by being deprived of her job and income. An award of £25,000 was made for injury to feelings as she had ongoing symptoms of mental distress as a result of the detriments and her employer’s actions had a devasting effect on her professional and private life.⁴⁹

In Vento, Mummery LJ acknowledged that subjective feelings such of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms.’⁵⁰

Nevertheless, it is argued that even if compensation for non-physical and non-financial loss is difficult to calculate because judges aim to base their decisions on objective evidence, that is not sufficient reason to undervalue psychiatric damage that has been inflicted. Indeed, some of the subjective feelings mentioned by Mummery LJ may be constituent elements in PTSD. Thus the question arises as to whether psychiatric damage should be recognised as a serious injury to feelings or whether it would be desirable for employment tribunals to make separate awards for injury to health.⁵¹ If the focus is solely on injury to feelings we would argue that the principle set out in HM Prison Service v Johnson⁵² should be applied i.e. that awards for injury to feelings ‘should bear some similarity to the range of awards in personal injury cases’. It is important to note that, although medical evidence is not required to support a claim for injury to feelings, it will be needed if it is asserted that physical or mental injury has been suffered that can have lifelong impairment consequences.

In Commissioner of Police of the Metropolis v Shaw⁵³ it was alleged that Shaw incurred injury to his mental health caused by the Commissioner’s conduct. The EAT accepted that employment tribunals are able to compensate for injury to mental health and that there were advantages if claims for personal injury were dealt with in the same place as for other losses suffered. Indeed, it was asserted that if the personal injury case was dealt with separately, it would be difficult for the court or employment tribunal hearing the second case to assess the extent to which the claimant had already been compensated for the same suffering. In the authors’ opinion, this line of reasoning reinforces the view that employment tribunals should be more willing to compensate for all types of injury that result from the whistleblowing process. It is acknowledged that this amounts to a call for statutory intervention (see conclusion below) or for the Supreme Court to revisit the decision in Dunnachie and allow the recovery of non-economic losses in unfair dismissal cases. However, such steps would be consistent with the remedies generally available in discrimination cases. Thus Section 124(6) of the EA 2010 provides that the compensation available under this statute ‘corresponds to the amount which could be awarded by the county court or the sheriff…’. Not only are the ordinary tort remedies available but specific mention is made in Section 119(4) of the EA 2010 of injured feelings.

The Shaw case also considered the availability of aggravated damages and their relationship to compensation for injury to feelings. A separate award of £10,000 had been made in Vento and the question arose as to whether it was desirable for aggravated damages to be regarded as an aspect of injury to feelings.⁵⁴ In principle, aggravated damages are compensatory and the circumstances in which they may be awarded relate to the manner in which the wrong was committed. The distress caused may be made worse by: (a) being exceptionally upsetting, eg, ‘in a high-handed, malicious, insulting or oppressive way’;⁵⁵ (b) by motive—conduct based on prejudice, animosity, spite or vindictiveness is likely to cause more distress provided the claimant is aware of the motive;(c) by subsequent conduct, for example, where a complaint is not taken seriously or there has not been an apology.

6. SHOULD CLAIMS BE MADE TO AN EMPLOYMENT TRIBUNAL OR THE ORDINARY COURTS?

The most obvious reason for bringing a common law claim for personal injury where psychiatric damage is suffered as a result of the whistleblowing process is if the plaintiff cannot complain under Part IVA of the ERA 1996. This may be for a variety of reasons, for example, because the complainant is not a worker, has not made a protected disclosure in accordance with the statutory provisions or has not claimed in time. As previously mentioned, other categories that are currently excluded are a friend or colleague of the whistleblower who suffers retaliation or a person who suffers mental ill-health as a result of being required by their employer to victimise a whistleblower. In this context, it is worth noting that Section 13 of the Protected Disclosures Act 2014 (Ireland) allows third parties to bring a claim in tort and that Protect (the UK’s leading whistleblowing charity) has advocated that a similar provision is inserted into Part IVA of the ERA 1996.⁵⁶

Since employers who impose detriments in breach of legislative provisions commit a statutory tort, claimants who demonstrate a direct link between the reprisals imposed for making a protected disclosure and their psychiatric illness do not need to prove that the harm was reasonably foreseeable. By way of contrast, a major issue in other tort cases is whether psychiatric damage was foreseeable and ‘eggshell skull’ arguments might arise.⁵⁷ If a person is physically or psychologically injured by retaliation, a pre-existing condition could be aggravated by that additional harm. For example, a workplace reprisal victim could have experienced an adverse childhood event that becomes symptomatic because of the trauma triggers at work. It might also be possible for an employee to show that being required to work in a situation where wrongdoing was evident amounted to a breach of the contractual duties of care or trust and confidence and that any damage to mental health was not too remote. In Gogay v Hertfordshire County Council⁵⁸ the Court of Appeal confirmed that once a duty of care to avoid injury is established, it does not matter whether the injury sustained was physical, psychiatric or both. In this case, it was held that the local authority had breached the duty of care owed to a residential care worker by suspending her without reasonable and proper cause, which seriously damaged the relationship of trust and confidence between employer and employee. As an employer has duties in both tort and contract towards its employees, the claimant was awarded damages for psychiatric illness and her inability to work again.

If mental -illness is recognised as a personal injury compensable via an employment award, this would have to be recovered via a statutory claim for detriment or dismissal because claims for breach of contract on termination of employment are excluded by Section 3(3)of the Employment Tribunals Act 1996. One possible problem here is that mental ill-health may have resulted in behaviour that allows a respondent to argue that the disclosure was not made in good faith. The consequence is that section 49(6A)of the ERA 1996 allows any compensation awarded to be reduced by up to 25%. However, we would hope that where there is evidence that a successful claimant was suffering from mental illness at the time they made a protected disclosure, an employment tribunal would not think it ‘just and equitable’ for compensation to be affected.

If a common law action for personal injury is brought, damages could be sought for psychological harm as well as physical pain and suffering arising from a breach of contract.⁵⁹ Not all those injured by the whistleblowing process will have a contract of employment but those who don’t may be able to establish that there was a wider duty of care owed to them. For example, Section 3(1) of the Health and Safety at Work etc Act 1974 provides that: ‘It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety’. However, it is important to note that, although a breach of this duty is an offence, it does not give rise to civil liability.⁶⁰

Drawing a distinction between primary and secondary victims can be difficult and secondary victims must meet very strict criteria. Indeed, the Supreme Court’s decision in a recent medical negligence case⁶¹ has not made life easier for the latter category. Here the majority held that witnessing an accident (defined as an unexpected and unintended event that caused injury, or a risk of injury, by violent external means to one or more primary victims) or its immediate aftermath is a necessary condition for a secondary victim claim. Thus if witnessing the suffering or death of a relative from illness or its aftermath is insufficient, the prospects for bystanders to whistleblowing reprisals recovering damages for psychiatric injury look bleak.

Arguably the common law is now too restrictive and insensitive to those secondary victims who suffer psychiatric harm as a result of witnessing harrowing events. However, even if the requirements for secondary victims to recover were less strict, in the context of whistleblowing, a bystander who suffered psychiatric harm must have witnessed the wrongdoing or retaliation in real time.⁶² Fortunately, a secondary claim is not parasitic upon one being brought by a primary victim. In fact, it may be that there was no primary victim at all because no one, for example, the whistleblower, was injured in the event that gives rise to the secondary claim. However, in order to be a secondary victim a person must show that sufficient proximity exists between themselves and the defendant such that a duty of care arises. If such a duty is established, bystanders to wrongdoing or retaliation who suffer psychiatric injury might be able to demonstrate that this was a reasonably foreseeable consequence of a negligent act i.e. a failure to take care. Examples of mental harm that might be alleged include depression, and general anxiety disorder as well as PTSD. Unfortunately, there is evidence in some whistleblowing cases that these conditions have led to suicidal ideation, suicide attempts and even death by suicide.⁶³

If a personal injury claim is successful, special damages for past and future losses can be considered as well as general damages. General damages compensate for pain and suffering and the detrimental effect on the quality of life. Loss of congenial employment may be important in the case of whistleblowers and bystanders who were particularly fulfilled by their work and have been forced out of their jobs. In some cases, judges treat this as part of pain and suffering and loss of amenity, but others have recognised it as a separate head of damages. Special damages for past losses facilitate the reimbursement of expenses related to the injury, for example, counselling or therapy for mental ill-health. Special damages for future loss could include loss of earnings or earnings potential.

In the case of general damages, the Judicial College provides guidelines for awards in cases of psychological injury.⁶⁴ The objective of the Guidelines is to reflect the awards of general damages currently being made by judges. They are merely a distillation of the awards being made by the courts for other similar injuries. Since the Guidelines are not mandatory, the determination of the appropriate level of awards remains with the judiciary. Chapter 4(A)of the Guidelines covers cases where there is a recognisable psychiatric injury. It notes that post-traumatic stress disorder is not a universal feature of cases of psychiatric injury but where it does arise ‘any award will tend towards the upper end of the bracket’. Cases where, following an event which created psychological trauma, post-traumatic stress disorder is the sole psychiatric condition are dealt with in Ch 4(B). Indeed, it is important to note that the Guidelines for Ch 4(B) have been compiled by reference to cases which reflect the criteria established in the 5th edition of Diagnostic and Statistical Manual of Mental Disorders which we have referred to above. In relation to both Ch 4(A) and 4(B) the following four headings, with accompanying ranges of possible awards, are utilised: severe, moderately severe, moderate and less severe.

7. CONCLUSION

There is now considerable research evidence that retaliation can be a traumatic event ‘and exhibits stresses that can be quantified and qualified so that there can be additional clarity and utility for treatment and the adjudication of damages’.⁶⁵ Indeed, a main aim of Garrick and Buck’s book is to -

identify and classify domains of retaliation and indicators for the level of severity related to psychological impacts that can lead to medical or disorders specified in the …..American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders -Fifth edition.⁶⁶

As well as whistleblowers, other people at a workplace who observed wrongdoing might also be affected by guilt, shame or anger because they failed to prevent or rectify it. Indeed, it is recognised that in redundancy situations ‘survivor guilt’ (or workplace survivor syndrome) may be experienced by those who keep their jobs while colleagues lose theirs.⁶⁷ It could be argued that, because such feelings of guilt etc. are foreseeable in other employment situations, employers should make specialist wellbeing services (eg, advice and counselling) readily available as part of their duty of care.⁶⁸ In the context of whistleblowing, many workers may feel morally obliged to raise concerns in order to avoid allegations of complicity in organisational wrongdoing. However, those who believe that exposing wrongdoing would lead to retaliation might feel morally conflicted. Justice demands that they raise a concern but the potential consequences of doing so instil such fear that they remain silent. One consequence of making such a difficult choice may be that survivor guilt is experienced.⁶⁹ Another approach is to suggest that those who are unable to reconcile their principles with the desire for self-preservation may suffer a ‘moral injury’.⁷⁰ According to the National Centre for PTSD, such injury arises when an occurrence ‘involves upsetting emotions changes in behaviour, difficulties relating to others, and/or a spiritual crisis’.⁷¹ Moral injury can be distinguished from PTSD as the former has regret as its core and the latter is based on fear. However, establishing that there has been moral injury could be used to satisfy PTSD criterion A i.e. that an individual suffers a ‘serious injury’.

We have seen that the common law severely limits the prospects of victims getting damages for injuries incurred as either witnesses to wrongdoing or persons instructed to retaliate. Thus, as a matter of principle, it would seem desirable to make appropriate remedies more widely available at employment tribunals.⁷² In addition to mirroring the EU Directive by protecting whistleblowers, facilitators and others adversely affected by reprisals, the UK might extend Part IVA of the ERA 1996 so that it covers people who suffer harm as a result of witnessing wrongdoing at work, being forced to participate in or observe the victimisation of a whistleblower. Another way to accomplish this would be for Parliament to expressly state that detrimental treatment of those caught up in the whistleblowing process constitutes an act of discrimination and applying some of the relevant provisions contained in the EA 2010. Indeed, on many occasions, the courts have acknowledged that discrimination and protected disclosure cases have some common features. Apart from the similar approach taken to awards for injury to feelings,⁷³ an individual who makes an allegation that another person has contravened the EA 2010 can complain of victimisation.⁷⁴ Thus in this context a protected disclosure also constitutes a protected act as defined by Section 27(2) of the EA 2010.⁷⁵

More generally, if whistleblowing was treated as a protected act the provisions of the Equality Act 2010 could be applied to a wider range of people caught up in the whistleblowing process. Thus, section 27(1) of the EA 2010 would not only shield those who have made a protected disclosure but would also outlaw victimisation of those perceived to have done so and those that the wrongdoer believes may do so. For example, bystanders and others might be able to complain of harassment i.e. conduct that violated their dignity or created ‘an intimidating, hostile, degrading, humiliating or offensive environment’.⁷⁶ Sections 111 and 112 of the EA 2010 could also be valuable in the context of whistleblowing. The former provision makes it unlawful to instruct, cause or induce (directly or indirectly), or attempt to cause or induce, someone to unlawfully discriminate. The latter deals with knowingly helping another to contravene the EA 2010, although there would be no liability if a person reasonably relied on a statement that they would not be aiding discrimination.⁷⁷ Thus if a person making a protected disclosure was deemed to have performed a protected act, several sections of the EA 2010 might inhibit the employer’s use of work colleagues or other third parties to retaliate. Similarly, bystanders and coerced conspirators may feel more empowered to resist attempts to involve them in reprisals if they know that they too could be liable for discrimination. Last but not least, if whistleblowing was treated as a protected act under EA 2010, those whose rights are infringed might seek a recommendation that specified steps be taken “for the purpose of obviating or reducing the adverse effect…of any matter to which the proceedings relate.⁷⁸

Another potential deterrent to mistreating those involved in the process of whistleblowing would be a greater willingness of the judiciary to award punitive/exemplary damages.⁷⁹ The main difficulty here is that such damages are currently not normally available in employment cases. Nevertheless, in the Virgo Fidelis case, it was accepted that there was no reason in principle why exemplary damages should not be awarded in whistleblowing detriment cases, provided that the conditions in Rookes v Barnard are satisfied.⁸⁰ However, in the writers’ opinion, the most desirable way forward would be for Parliament to expressly provide for punitive/exemplary damages in employment cases.⁸¹

Thus, it is being asserted that different approaches are needed if people who are harmed as a result of the whistleblowing process are to obtain full redress. The authors are not suggesting that everyone affected by whistleblowing has morally equivalent claims. However, if speaking up in the public interest is to be encouraged, societies might wish to ensure that not only those who suffer reprisals for raising concerns are fully compensated but others involved in the whistleblowing process should be able to get redress for both physical and psychosocial harms inflicted on them. To facilitate this, it is suggested that the judiciary should receive specific training about the nature and toxicity of retaliation tactics. This could obviously be valuable in whistleblowing cases⁸² but would also be relevant in a wide range of situations where workers have been sanctioned for exercising their rights. An anticipated benefit of specialist training is that compensation could be based less on the emotional perceptions of judges and more on proven measurements of psychological impairment. In addition, a better-informed judiciary could make it easier for family members who experience secondary traumatic effects of retaliation to receive damages, especially if the retaliation leads to a suicide.⁸³ This would accord with the approach taken in the EU Directive which mandates that Member States afford protection to facilitators and third parties who could suffer retaliation.⁸⁴

Wrongdoing at work will never be completely eliminated and, for a variety of legal and practical reasons, many of those affected directly or indirectly by the whistleblowing process are unlikely to be fully compensated for the physical or mental harm they suffer. Hence we call for greater efforts to deter reprisals against whistleblowers,⁸⁵ hold perpetrators accountable, and to mitigate the consequences of retaliation for those who experience or witness it. In the long term, we think that wholesale reform of the legislative framework for whistleblowing is required.⁸⁶ Most obviously this might be along the lines of the EU Directive on Whistleblowing which, inter alia, covers a wider range of persons caught up in the whistleblowing process and requires that ‘effective remedies’⁸⁷ be made available. However, if Part IVA of the ERA 1996 is not amended in order to provide protection against discrimination as such,⁸⁸ an alternative might be to stipulate that a person who makes a protected disclosure has performed a protected act for the purposes of the EA 2010. Although such a move may not greatly reduce the incidence of reprisals against whistleblowers,it would mean that bullying, harassment and other forms of victimisation could give rise to liability for prohibited conduct within Part 2 EA 2010. In addition, the responsibility of both employers and individuals for inducing, causing, instructing or aiding retaliation would be clearer.

Footnotes