which they work that they reasonably believe exposes
financial malpractice, miscarriages of justice, dangers
to health and safety, and dangers to the environment.
Disclosure may be made to an employer, but where the
disclosure relates to the employer or there is danger
of victimisation, it may be made, for example, to a regu-
lator such as the Financial Services Authority for City
frauds. Whistleblowers who are dismissed or otherwise
victimised may complain to an employment tribunal.
A number of successful claims under the Public Interest
Disclosure Act 1998 have been made (see e.g. Fernandes
v Netcom Consultants (UK) Ltd(2000)). Mr Fernandes,
the claimant, is an accountant and was employed by
Netcom Consultants, a telecoms consultancy, as finance
officer. Netcom is a subsidiary of the US XSource Corpora-
tion. As part of his job, Mr Fernandes checked expenses
claims, including those of his boss Steven Woodhouse.
It appeared that Mr Woodhouse failed to provide receipts
to back up his claims and Mr Fernandes reported this
matter to the US parent company. Despite making re-
quests for supporting documents, Mr Woodhouse
‘fobbed him off ’ with explanations but did not produce
receipts. Mr Fernandes sent a fax to an official of the US
company making clear his concerns but was instructed
to destroy his copy of the fax and told, ‘You must look
after your butt.’ Later Mr Woodhouse’s expenses rose
steeply but were still not backed by receipts. The com-
pany’s cash flow was causing concern and Mr Fernandes
complained by letter to the US parent company. He was
later sacked from his £70,000-a-year post after being
told by XSource that he had lost the respect of the US
parent for not acting sooner! Mr Woodhouse remained
in employment, but after investigation was asked to
resign. Mr Fernandes complained to an employment
tribunal in Reading and was found to be protected by
the 1998 Act and, therefore, automatically unfairly dis-
missed. The tribunal said that the US company had
made a clear attempt to intimidate and pressurise Mr
Fernandes to resign to keep the matter quiet. Mr
Fernandes’ award was £290,000.
Even in the absence of legislation, it may still be a
breach of contract for an employer to dismiss an
employee for making or attempting to make disclosures
of fraud. An employment tribunal has made an award
of damages for breach of contract to a salesman who
attempted to alert his employer to an alleged fraud
in the organisation. He reported the matter to his man-
aging director and was dismissed. He could not claim
unfair dismissal because he did not have the required
service, but was awarded damages for breach of contract
(see Financial Times, 10 September 1997, re Richard
Jordan (Birmingham Employment Tribunal)).
The Employment Appeal Tribunal has ruled that an
employee’s misconduct cannot amount to a public inter-
est disclosure under the Public Interest Disclosure Act
1998, even if it is linked to the disclosure and is intended
to show that the employee’s concerns are reasonable.Part 4Business resources
492
Bolton Schoolv Evans(2006)An employee of the school hacked into its computer sys-
tem to demonstrate security flaws and told his employer.
The EAT ruled that hacking into the system could not
amount to a protected disclosure. The legislation pro-
tected disclosure but not other conduct on the part of
the employee, even though it was connected with the
disclosure. The law did not protect an employee who
committed misconduct in the hope of finding evidence
to support his or her allegations.
Thus, when the employer disciplined the employee
for misconduct, it did not subject him to a detriment for
making a protected disclosure. Furthermore, the employee
was not automatically unfairly dismissed when he resigned
in response and made allegations of unfair dismissal.The employment contract and
shop workers
The Sunday Trading Act 1994, which came into force
on 26 August 1994, repealed previous restrictions on
Sunday trading. Recognising the impact of this on shop
workers, Sch 4 to the Act provided them with new and
important rights. These rights, which are now contained
in the ERA 1996 (Part IV), are:
■not to be dismissed or made redundant for refusing
to work on Sunday; and
■not to suffer a detriment for the same reason.
These rights extend to all shop workers in England and
Wales if they are asked to do shop work on a Sunday.
They are not available to Sunday-only workers.
The ERA 1996 defines a shop worker as an employee
who is required or may be required by contract to work
in or about a shop on a day when the shop is open to
serve customers.
However, the worker need not actually serve cus-
tomers and the provisions extend beyond sales assistants
and check-out operators to clerical workers doing work