Hidden skeletons - Farrer & Co

This is all the more likely given that
the tribunals do not carry the same costs
regime as the civil courts and, therefore,
there is not the same financial downside
to pursuit of a claim when it is only in very
limited circumstances that the loser can be
required to pay the winner’s costs.
Tribunals have made significant
awards in the past. In 2010, Public
Concern at Work reported that the highest
whistleblowing award had been £3.8m
and the average award was £113,677.
These statistics do not, however, take into
account the vast majority of cases that
settle under confidential terms (all the
more likely in the legal sector).
Where your whistleblower claimant is
a lawyer with ambition (which, let’s face
it, most of us are), then it is relatively easy
for the disgruntled solicitor or salaried
partner (who may well be an employee
and therefore covered by whistleblowing
CASE STUDY
Jane, an ambitious young associate, makes a disclosure to her managing partner about
an inappropriate relationship between the head of her team, John, and a young solicitor
on the other side of a transaction. She feels that there is potential for a conflict of
interest and/or breach of confidentiality obligations.
She genuinely believes that there is cause for concern, but John is outraged that
she has approached the managing partner to “tell tales”. John point-blank refuses
to work with her, thereby removing her from some rewarding and high-profile work.
To make matters worse, John makes clear to other partners within the team that he
considers her commitment and work performance to be poor.
In this scenario, clearly the managing partner needs to conduct an investigation to
get to the bottom of the allegation and take action accordingly. It is important not to
lose sight of the need to support Jane and make clear to John that it is not acceptable
for him to ‘send her to Coventry’ and isolate her from his work, particularly if Jane is part
of a small team and is unlikely to be allocated challenging work from other sources.
This is especially important if it transpires that Jane’s concerns, albeit genuinely
held, were not substantiated and/or John had already taken steps to manage the
potential conflict of interest. In these circumstances, he is all the more likely to remain
intransigent and unwilling to work with Jane in future.
There is also a question over what other partners should be told about the
allegation, assuming that they do not know about it already and therefore take John’s
concerns about Jane’s performance at face value.
It is therefore crucial that someone takes responsibility to ensure Jane’s career is
not hindered by John’s behaviour, both in the interests of retaining talent and avoiding
a potential whistleblowing claim.
legislation) to argue that, by being
marginalised or sacked, he has sustained
potentially career-long losses and should
be compensated accordingly.
There are many lawyers around but,
when it comes to litigation against law
firms, it is a very small world and, as we
all know, it can be career suicide for a
young lawyer to sue. As a result, high
damages in some cases are a very real
possibility, at least to the extent that the
claimant has leverage to negotiate a
settlement package in six and, in some
cases, seven figures.
Limiting liability
Whistleblowing policy
So, do you need a formal policy In the
UK (unlike jurisdictions like the US),
there is no legal obligation to have a
whistleblowing policy in place, but there
are a number of good reasons to do so.
The aim must be to create an
environment where your staff do not feel
that they are likely to be victimised if they
draw attention to wrongdoing and have
the confidence to do so. The advantage of
having a written policy in place is that you
have a document accessible to all, where
it is expressly stated that victimisation is
prohibited and will not be tolerated, and
that disclosure of suspected wrongdoing
is actively encouraged.
A second (but also important) reason
to have a written policy in place is that
if you are unlucky enough to need to
defend a whistleblowing claim in an
employment tribunal, you will immediately
be on the back foot (particularly if you
manage a medium to large firm) if you
cannot point to a document which sets
out your approach to managing
whistleblowing complaints.
There then needs to be a structure
in place to ensure that individuals know
whom to approach with a concern and,
in particular, to enable them to bypass
the person or management level to which
the concern relates. In law firms, it is not
always obvious who that person should be
unless you have a clear policy in place.
Think carefully about who you
nominate to consider and investigate
any disclosures. It is not always sensible
simply to name the head of a business
function in every case. In order to facilitate
internal disclosure, it is important to select
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