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Employers can learn much from BBC Panorama whistleblowing scandal
27/05/2021
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BBC Broadcasting House headquarters of the British Broadcasting Corporation in Portland Place
Authors
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John VDLD
John van der Luit-Drummond is editor of International Employment Lawyer

With its explosive revelations about her marriage to the heir to the British throne, a Panorama interview with Diana Spencer, the late Princess of Wales, made headlines around the world in the mid-90s. But shortly after the programme aired in 1995, concerns were raised within the BBC over the ethics of one of its journalists, Martin Bashir, who secured the now-infamous interview through “deceitful” means.

Graphic designer Matt Wiessler says he was made the “fall guy” after Bashir asked him to create fake bank statements that helped the journalist gain access to the princess. An internal investigation cleared Bashir of wrongdoing, while those who raised the alarm were ostracised and fired from the corporation.

A 1996 memo revealed how the BBC’s then managing director of news, Tony Hall, blacklisted Wiessler and took steps to “deal with leakers and remove persistent troublemakers” from the flagship current affairs programme. Among those targeted were former producer Mark Killick, who was dismissed within 24 hours of bringing critical documents to senior management, and Tom Mangold, a former reporter on the programme, who was branded “jealous” of Bashir and also let go.

New revelations surfaced in 2020, leading to a full-scale independent investigation. The subsequent Dyson report found Bashir used deceit to organise the Diana interview, that Hall’s internal investigation was “woefully ineffective”, that the BBC had attempted to cover up the allegations and “fell short of the high standards of integrity and transparency which are its hallmark”.

The scandal now engulfing the BBC is a reminder to employers that a well-publicised whistleblowing policy is a necessity, as well as evidence – as if more were needed – that care should be taken when investigating allegations of wrongdoing in the workplace.

“Thankfully, most employers will never face allegations of forgery involving the late Princess of Wales. But while the BBC-Bashir case has unique facts, the issues are familiar,” says Raoul Parekh, a partner at GQ|Littler in London. “The whistleblower here says that his career was basically ruined as he found himself sidelined after speaking up, and this points to the main risk for all employers with these cases: shooting the messenger.

“When someone delivers an unwelcome message, it’s easy to understand why the first reaction might be negative. But allowing that negativity to persist creates real legal risk for employers,” he adds. “Instead, they need to establish systems that make sure whistleblowing reports are dealt with impartially and dispassionately. The more significant and wide-ranging the allegations are, the more difficult this can be – and this seems to be one way in which the BBC fell short.”

Severe consequences

Mangold has reportedly not ruled out bringing legal action against the BBC, while the corporation has confirmed it is in discussions with Wiessler regarding compensation. Speaking to BBC Radio 4 on 25 May, BBC director-general Tim Davie said he was “shocked” by how Wiessler had been treated by the corporation and offered the graphic designer a “full, unconditional apology”. Asked if he deserved compensation, Davie said the broadcaster would engage in a “legal discussion” because “clearly we were at fault”.

“The consequences can be severe, and potentially life-threatening for the organisation,” offers Parekh. “The BBC is facing calls for serious governance reform, while private-sector employers can face legal liabilities leading to insolvency. Individual managers can also face personal consequences: 2018’s Osipov case saw the non-executive directors held liable for a CEO’s dismissal and face an award of £1.75m.”

“An organisation that buries unpalatable truths is, at some level, a corrupt one. Failing to face the awkward truths is a poor business strategy,” warns 11KBW’s Sean Jones QC, who reminds employers that the dismissal of an employee for whistleblowing is automatically unfair under UK law.

“Unlike most other forms of unfair dismissal, compensation in whistleblowing claims is uncapped,” he says. “The employee can apply for ‘interim relief’, an order that preserves the employment relationship until the unfair dismissal claim is determined. During the period between the interim relief hearing and the full hearing, the employee must receive their pay. Even if they then lose, the employer has no entitlement to be paid back.”

...don’t assume that the disclosure is an attack rather than as an attempt to help

A further consideration for UK employers is that the Employment Appeals Tribunal has recently made it clear that interim relief hearings should be conducted in public, adds Jones QC. “So the allegations get a public airing within a very short time of the dismissal without the tribunal determining whether they are true or not. Vindication may come only years later.”

In addition to unfair dismissal protection, the Employment Rights Act 1996 offers protection against suffering a “detriment”. This is another route to compensation with employees able to claim for ongoing loss of earnings. Also of note, the protection applies not only to employees, but many self-employed people, too, provided they fall within the “worker” definition; a definition that has been arguably widened by the Supreme Court’s Uber decision.

“The causation threshold is lower in detriment claims, with the protected disclosure only having to be a substantive cause of the decision, whereas in an unfair dismissal case it has to be the sole or principal reason,” explains Jones QC. “The protections for employees and workers are the same, with the exception that a worker cannot bring an unfair dismissal claim under section 103A. The real danger is that employers commonly don’t appreciate that workers are protected, too.”

Aside from arguments over legal liability, the public relations impact will not turn on the employment status of the individual concerned, adds Parekh: “Anonymous reports might also mean that the employer doesn’t know who has made the reports, so the focus should be on dealing with the issues highlighted, and not who has raised them.”

Jan-Ove Becker, a partner in the Hamburg office of vangard|Littler, explains further: “Besides the strict legal liabilities for employers, there is a very significant risk related to reputational damages. While prosecutors, courts, and especially public opinion often appreciate a professional internal investigation and a company’s will to limit damages resulting from errors, not providing a professional reporting system or not acting in a proper manner after a report will result in much harder consequences.”  

Key takeaways

Although the BBC’s actions offer practical advice for other UK-based employers, organisations with interests in mainland Europe should also ensure they are on top of the EU’s new whistleblowing directive, which encourages employees to come forward in cases of actual or alleged wrongdoing.

“With the new EU directive covering smaller companies, also far more employees will have access to a dedicated reporting system,” says Becker. “After the #MeToo debate we have seen an increasing number of reports about harassment in the workplace than ever before. This was not a result of more incidents, but simply a result of employees now having the courage to say something.”

If new regulations or the increasing power of social movements encourage more employees to come forward with their workplace concerns, then large organisations should ensure there is someone independent of a whistleblower’s line management with specific responsibility for logging and investigating protected disclosures, advises Jones QC.

“Don’t be dismissive, however unlikely the disclosure may at first seem. If you are finding the disclosure hard to square with your understanding of how your organisation operates, it may well be because what is really going on is carefully concealed from you,” he adds. “Even a defensive allegation may be well-founded. And just because the whistleblower is in trouble themselves does not mean they are not making a protected disclosure.”

The 11KBW silk also advises employers to avoid common behaviours employment tribunals tend to frown upon, such as warning a whistleblower that, if what they say is true, the subject of the disclosure might lose their job. “It’s an employer’s job to investigate and to impose consequences,” he says. “Suggesting that the whistleblower should see themselves as personally responsible for the adverse consequences that might flow for others transfers the employer’s responsibility in a manner that cannot help but seem cowardly and unfair.”

Worse, explains Jones QC, would be warning a whistleblower that they could be in trouble if, upon investigation, what they allege is not found to be true. “They may have reasonable grounds for their belief and be proved wrong. That would not mean that there hadn’t been a protected disclosure. Telling them that if they press the point their own career is in jeopardy is the first step in a cover-up. Finally, don’t assume that the disclosure is an attack rather than as an attempt to help.”