The Real “Unreasonable”: How the UK uses this Vague Term to Deny Rights to Whistleblowers with Retaliation-Trauma Symptoms

By Abby Price

In Great Britain, appearance, rather than merit, serves as a basis for justice in whistleblower retaliation cases. Employment tribunals, independent bodies within the national judicial system authorized to hear employment related legal disputes, receive all whistleblower cases. For cases filed in England, Wales, and Scotland, under The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Rule 37 1(b), tribunal judges can render claims of retaliatory acts invalid by “striking out” claims if whistleblowers demonstrate “unreasonable” behavior during the proceedings. An employment tribunal ruling from Blockbuster v. James (2006) further stipulated that conduct qualifies as “unreasonable” if it displays deliberate and consistent disregard against procedure or prevents a fair trial. Moreover, the ruling requires tribunals to consider if striking out is a proportionate response. Yet, even with further guidelines, judges can still ignore the context of unreasonable actions. Whistleblowers, who often endure mental and emotional trauma from employer retaliation while defending themselves against their retaliators, are uniquely vulnerable to be labeled as “unreasonable” as a consequence of trauma-related behavior. Unfortunately, such behavior, rather than the facts at hand, can ultimately seal the fate of their case.

Judges argue that allowing proceedings to continue with parties acting unreasonably impedes the right to a fair trial. However, requiring parties to align with a vaguely defined notion of reasonable behavior opens the floodgates for the tribunal judges to evade due process rights and unfairly dismisses whistleblowers’ legitimate claims. Whistleblowers suffer many negative psychological effects from engaging in the whistleblowing process. This is not surprising as the whistleblowing process entails financial and personal hardships such as lost career opportunities, isolation from coworkers, friends and family, and trauma from retaliation. One study done by Dutch researchers found that 85% of whistleblowers struggle with anxiety, depression, and interpersonal sensitivity and distrust. Almost half of whistleblowers experience these effects on a clinical level, a percentage disproportionate to the incidence of such disorders in the general population. People suffering from anxiety and depression are prone to irrational, rash behavior as they wrestle with irritability, anger, asnd paranoid thoughts. Whistleblowers, with heightened tendencies to struggle with such psychological issues, are uniquely inclined to act in ways that may be considered unreasonable. It follows, then, that most whistleblowers could fall into that category and therefore have their cases dismissed without a ruling on the merits. The rule, in effect, punishes whistleblowers for speaking the truth while granting the retaliators a get-out-of-court-free card.

A recent decision on Phelan v. The National Health Service Commissioning Board revealed how Rule 37 endorses indifference towards trauma-related behavior. Mr. Phelan claimed that after marking a public interest disclosure his employer retaliated against him. Judge Bedeau cited multiple outbursts on behalf of the whistleblower, Mr. Phelan, who questioned the authority and neutrality of the tribunal throughout the hearing process. Though Mr. Phelan presented a doctor’s note indicating that he was unfit for work, the tribunal contended that being unfit for work did not mean he could not conduct a hearing. The doctor’s note concerned Mr. Phelan’s problems with his Type 2 diabetes medications. The tribunal initially adjourned the hearing in light of how he was feeling, while explicitly noting the fact that he failed to include a description of his condition in the applications and to announce how he was feeling at the beginning of the hearing. Yet, when the hearing began only three days later, the tribunal refused his request for adjournment despite Mr. Phelan’s doctor’s note that declared him unfit to work during the same time period as the date of the hearing. The tribunal asserted that there is a distinction between being unfit for work and being unable to conduct proceedings as argued in Andreou v. Lord Chancellor’s Department.

Additionally, the tribunal cited their use of Presidential Guidance 2013 over the postponement of a hearing. Presidential Guidance notes provide additional details on how to interpret and respond to cases where the tribunal rules apply. Presidential Guidance 2013 specifically asserts that in any requests for postponement that reference medical issues, all medical evidence and certificates should be provided that demonstrate how the applicant is unfit to attend the hearing. Mr. Phelan’s doctor did not specifically note any issues preventing his participation in the hearings. In further support of denying Mr. Phelan’s adjournment request, the tribunal wrongfully crossed the threshold of their legal expertise, or at least for tribunal members with legal qualifications, by playing doctor when they reported that they did not see any “material change in his circumstances of demeanor” and that he “came across to us as a highly articulate person who was able to challenge many of the statements…he was capable and competent to conduct his case.” The tribunal considered the implications of Mr. Phelan’s physical medical issues in the hearing. Yet, in their conclusions of Mr. Phelan’s demeanor, they ultimately conflated articulation and competence with suitable mental and emotional wellness. Instances of acting out, according to this logic, would be understood as deliberate actions of a competent individual rather than unruly responses of a trauma victim.

Neither physical impairments or psychological conditions appeared to be taken in account in the tribunal’s decision over Rule 37. At one point, Mr. Phelan called the tribunal “a kangaroo court.” He followed the declaration with a heartbreaking realization:

“It’s a joke or it would be if the consequences were not so serious for me if I lose. I can’t afford to lose; I would be bankrupt and lose my house.”

Mr. Phelan was scared and aware of the severe consequences that awaited him should his claim fail. Pursuing his claim of detriment clearly distressed him. Mr. Phelan declared himself unfit for the hearing as he was suffering from medical issues. The judge also justified dismissing Mr. Phelan’s claim because he left during the final hearing. Upset by the tribunal’s unwillingness to further accommodate him and postpone the hearing, he declared he was going to go back to his “sick bed” and did not return. The onset of anxiety and distrust—stemming from the whistleblowing process—could have easily motivated Mr. Phelan’s “rash,” statements and his decision to leave the proceedings. However, Employment Judge Bedeau failed to address this possibility.

Unlike in cases of postponement, Presidential Guidance 2018 lacks any directions to assess available medical evidence in cases of unreasonable conduct, leaving it vulnerable to abuse and misinterpretation. Additionally, Presidential Guidance does not offer any requirements for handling such behavior for those who can prove some sort of disability. Disabled plaintiffs may apply for reasonable adjustments such as secluded waiting areas or simplified questioning. Recent cases such as Rackham v. NHS Professionals Ltd and Galo v. Bombardier Aerospace UK asserted that tribunals have non-statutory obligations to provide reasonable adjustments and that the judges are responsible for investigating the implications of the disability in the hearing process, even if the plaintiffs do not ask for adjustments. The rulings, overall, allow that the type of adjustment is relative to each person and case. Without a standard, however, it is hard to understand how any adjustments could either limit unreasonable behavior or tribunals’ power to label behavior as unreasonable. Under the Equality Act 2010, whistleblowers suffering from anxiety and depression may not even qualify as legally disabled if they cannot prove that their “impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.”

Furthermore, though judges realize that, as declared in the judgement for Rackham v. NHS Professionals Ltd “it is well known that those who have disabilities may suffer from social attitudinal or environmental difficulties,” both common law and statutory law fail to compel tribunals to acknowledge this reality in using Rule 37 1(b).  Unless whistleblowers preemptively declare a disability, which they may not understand themselves to have or trust others enough to assess their mental state, tribunals are not obliged to take other impairments into account. In the tribunal’s eyes, and under the legal framework, Mr. Phelan’s outbursts simply culminated in intentional unreasonable conduct—no ifs, ands, or buts.

Since February 2017, out of all the cases available on the public online registry, the Employment Tribunal dismissed at least 11 whistleblowing claims by using the “unreasonable” behavior justification, despite the sentiments expressed by Employment Judge Martin, and shared with several other employment judges, that such dismissals are a “draconian measure.” Eleven cases might seem to be a small number, but even one lost claim to Rule 37 1(b) should be enough for people to shake their fist at such an injustice.

It is important to consider the impact this has on public health and safety as it is the public who benefit from their disclosures and are at risk when judges strip whistleblowers’ rights away. It is also alarming that retaliators have the power to initiate the process to strike out whistleblowers’ cases. Rule 37 allows defendants to send applications requesting the tribunal to strike out plaintiffs’ claims. While the tribunal remains obligated to the law, not the whims of a party’s application, Rule 37 gives retaliators a loophole for addressing whistleblowers’ legitimate claims in court. Retaliators have incentives to use more severe and deliberate tactics to induce whistleblowers to respond “unreasonably,” resulting in a strike out under Rule 37 1(b). Whistleblowers may likewise apply to oppose the dismissal of their claims and dismiss the retaliator’s defense under Rule 37. In opposing a proposed strike out, whistleblowers can argue against the tribunal striking out their claims. It is harder for whistleblowers to prove that their actions did not deliberately or consistently disregard procedure, however, than it is for retaliators to provoke whistleblowers until they explode in an outburst that might seem unreasonable to an unsympathetic judge. The judge’s impression from visibly observing the intensity of whistleblowers’ actions may skew the judges’ ability to view whistleblowers’ actions as unintentional. To dismiss the defendant’s case, whistleblowers must convince the tribunal that the defendant acted in a scandalous, unreasonable, or vexatious manner. Retaliators, however, can provoke whistleblowers to act “unreasonably” through less overt methods that judges could deem negligible. Given whistleblowers’ psychological vulnerabilities, whistleblowers are more sensitive to offense. Retaliators can leverage the whistleblowers’ sensitivities by attacking them in subtle ways that appear “reasonable.” Tribunal judges can as easily as a wave of a hand dismiss applications against the defendants as whistleblowers’ counter claims fail to address any “reasonably” dismissible behavior. Therefore, Rule 37 not only denies merit-based considerations but also disproportionally favors retaliators.

Neither sanity nor the appearance of sanity should be a prerequisite for protection under the law; all are entitled to due process. Unreasonable people can still be right. Even if the tribunal gives whistleblowers with disabilities accommodations, these same rights do not extend to Rule 37 1(b). In any case, behavior should not greatly outweigh the facts of a case. The UK Employment Tribunal is sending the message that whistleblowers who are victims of retaliation cannot appear victimized, or they risk losing their case and their livelihood.

Now, that is unreasonable.