The system of rights, practices, tribunals and protections for whistleblowers in the UK is broken, following reforms aimed at deterring claimants. Funding cuts have led to a backlog of cases and endless appeals, while a continued lack of recording of proceedings adds to the confusion and increases the number of flawed cases.
Judgements are handed down after weeks or months of delay based purely on whatever a judge may have scrawled down months before. Constraints on legal aid mean employers may lawyer up but few claimants can afford to. At the same time, employment rights have been cut under successive governments less protected jobs such as zero hours and temp contracts and ‘self-employed’ jobs in the gig economy rise remorselessly.
Here, Simon Ferrigno speaks to Katarzyna Paczkowska, a Polish graduate, about her case for sex and race discrimination and how she has been waiting for justice since 2016.
High hopes
Katarzyna came to the UK over 10 years ago with high hopes. She was recruited in Krakow by a UK company on a contract promising housing, transport and a guaranteed job.
A recent Masters in Engineering, she saw this as an opportunity to better her job prospects by improving her English, working a range of roles and gaining UK qualifications. She says she “learnt fast and loved different computer systems especially advanced Excel, in which I was highly skilled”.
There was a dark side though. Katarzyna reports “incidents of discrimination every now and then, especially with the financial crash or towards/post Brexit referendum”.
When grievance and discipline go wrong
In her last job things came to a head. She was only there for four months, and says “it was impossible for me to stay there”. This despite having been headhunted for that job by D4 Technical. Her headhunter, Susan Dando, later sent Katarzyna an email saying it was a disgrace she had dared complain about discrimination.
- Katarzyna says she raised concerns over discrimination based on sexual comments and questions about her residence status after the Brexit referendum. This included questions “asking if I had Polish boyfriend”.
- She also says she was being given more and more tasks, to make her fail. Not just for her employer, but also for D4 Technical (despite not being hired to work for them, having only been headhunted by them), a sister company of her employer, R-Com. Consulting.
- Katarzyna explains “I became a shared resource, being questioned on my visa and passport and long term plans a day after referendum in an open plan office, being forbidden to speak Polish with a Polish friend who was leaving in three days (without another job to go to!) after the referendum, when it was completely fine before”.
- Even worse, she was “forced to sit three days after raising sexual harassment by my Line Manager, next to him, when I asked at least twice to temporarily move desk”. She was not assigned the confidential helper the company policy said she should have, despite three senior managers being aware of her complaint of sexual harassment.
What happened next?
Katarzyna’s grievance was not upheld. Her employer asked the law firm Peninsula to deal with the matter. Peninsula failed to “investigate sexual harassment e-mails on two laptops they had then available”. Katarzyna’s laptop was later wiped.
Katarzyna was not present at the grievance meetings as she was not well, and felt unsafe as there was no HR support at the meeting. The use of an outsourced legal company by the employer only came to light at an employment tribunal hearing on 3-5 September 2018. Katarzyna says “If I knew there are HR professionals involved maybe I would attend”.
Whistleblowing fails (again)
Katarzyna left the company claiming constructive dismissal. Following her first tribunal case, she made a protected disclosure. This means blowing the whistle on poor practice, something which is meant to offer some protection to the person making the disclosure but rarely does so.
Katarzyna’s disclosure related to the fact that her employer’s sister recruitment company was on the same open plan floor. Its staff earned commission for hiring new staff and so had an incentive to see high staff turnover. She says the entire sales team had changed by December 2015.
She claims the employment tribunal ignored her disclosure and failed to notify the prescribed body, the Health and Safety Executive or the Equality and Human Rights Commission, despite another woman also alleging sexual harassment (she later backed off and left the company). Katarzyna also says that the “Respondent refused to disclose transcript of this interview until prompted twice by Tribunal Order”.
Katarzyna says the alleged perpetrator had also admitted some “offensive comments” after earlier denials. She points out that the other victim also left and another female employee left after just one day.
The tribunal ignored Katarzyna’s claim that “All evidence of sexual harassment emails was destroyed by Respondent and failed to be investigated in grievance stage. I was challenging ET [the employment tribunal] for 5 months to order disclosure but refused every time until Respondent admitted to destroying it”.
An expert witness for the defendant even admitted wiping Katarzyna’s laptop on the respondent’s orders for the period covered by the claim.
Trials and tribulations of waiting for judgement
Katarzyna says that most of the evidence supporting her case was “either omitted or forgotten in 11 months from Hearing to Judgment”. Before the judgement, the tribunal allowed one of the Respondent’s witnesses to be re-examined but the claimant did not have a similar chance. Only one out of 21 claims was successful (victimisation), and her appeal is now three and a half years late: the whole process has dragged on since December 2016 when the tribunal process was initiated.
Katarzyna has so far never received anything for the successful victimisation claim.
She has seen a rash of problems hindering her case: procedural irregularities, complaints and appeals ignored, all while unwell, representing herself as a non-native English speaker.
Life in limbo
Once someone is in the employment tribunal system there are no easy ways out. Even a claim to the EHRC requires a victim to have a legal representative. Claimants in person cannot do this. Katarzyna’s pro-bono support pulled out as the hearing was three days long, while it could take 30 weeks to get a result.
In Part 2 we will take a closer look at what has gone wrong with the employment tribunal service and what comes next for Katarzyna.
Katarzyna is one of many victims of this broken system. Central Bylines is in touch with a whistleblowers support group and we plan to feature more testimonies.
The fundraiser here is in support of another whistleblower shortly going to court: https://www.crowdjustice.com/case/stop-toxic-bullying-culture/
