Updated: Nov 20
Employment disputes are supposed to be settled in a free and fair way; the reality is much different. In an interview at the 2023 Annual European Compliance and Ethics Conference (ECEC) in Munich, the largest conference dedicated to this subject globally, whistleblower Alison McDermott spoke of her case, and of a system that is awash with discrimination, inequality and abuse – at the expense of those who need it most.
A recap for readers of this blog, Alison told the conference the ordeal Sellafield and its governing body, the NDA, have put her through. After speaking out about serious employee abuses and abject failures within the nuclear facility’s HR department in 2018, HR director Heather Roberts and Lesley Bowen, who was responsible for the company’s EDI strategy, dismissed Alison overnight, citing financial reasons. Later, when Alison pursued litigation, Sellafield changed its tune, instead saying they acted on concerns over her performance, only mentioning financial reasons “to be kind”.
“It just doesn’t stack up”, she told interviewer and communications consultant Katy Diggory. “There is nothing kind about telling someone that we’re sacking you for one reason, and then three months later introducing a new reason when you no longer have a right to reply because you’ve already left”.
In addition, Alison produced a document highlighting Sellafield’s offer of an 18-month contract renewal just one month before her dismissal, which detailed the nuclear site’s perception of her previous work there as excellent and trusted by the executive.
What followed Alison’s dismissal is another damning indictment of the employment tribunal system. From her initial claim to the verdict, Alison recounts the bullying and harassment she was subjected to, labelled a “self-absorbed, self-serving woman” by Sellafield’s barrister, who insinuated she was pursuing her employer purely for financial gain – despite full knowledge of Alison having refused a £160,000 settlement offer.
Her interview at the conference further highlights the egregious power imbalance within the tribunal system. From the contrasting legal budgets of self-funded claimants versus their employers (in this case, an employer whose £670,000 of legal fees were picked up by the taxpayer), to the absence of any court transcript, and the lack of safeguards to protect employees from having reputation-damaging judgments publicly made against them simply for speaking out.
“Imagine being in a boxing ring with your hands tied behind your back and having to absorb punch after punch” was the metaphor Alison used, her experience made even more shocking with Judge Philip Lancaster allowing her former employers to pursue her for the maximum allowed costs.
Research by Greenwich University supports the imbalance Alison described, finding that more than half of all whistleblowing claimants represent themselves at their hearings, usually as a result of financial constraints. At the same time, employers are securing more expert legal representation than ever before.
The conclusions point to a modern landscape at odds with the informal grounds upon which the employment tribunal system was founded. The requirement of an advanced understanding of legal dogma has accompanied the encroachment of major legal firms into the realm of employment law – with employers spending hundreds of thousands of pounds to defend themselves from the claims levied against them.
This calls into question how an individual claimant could ever be able to compete against their bosses. The outcomes of employment tribunal cases indicate that, in practice, they rarely can. Referencing the government’s own tribunal statistics, Alison told the conference that between 2007 and 2021 only 3% of whistle blowers were successful at tribunal, noting that for women, the challenges faced are even more difficult.
“I think it’s incredibly hard for anyone to blow the whistle because of the huge barriers and inequality”, she said. “But research shows that women’s motives are more likely to be mistrusted”.
Need for substantial reform of the Employment Tribunal system.
This phenomenon, Alison says, was manifest in her own judgment, with Judge Lancaster determining she was “pursuing some ulterior motive related to her desire to position herself as the champion of inequality within the nuclear industry”. This despite Judge Lancaster having reviewed evidence of Sellafield describing her as already a nationally respected expert in her field of work.
The experience of employment the tribunal system Alison shared with the ECEC stands as a clear example of why it needs substantial reform. Even now, following a successful appeal of her judgment, she is still being pursued by Sellafield for costs.
Alison at the conference
“Their duty is to create an environment where people are free to speak out, but hounding people for costs will obviously have the opposite effect” she said, adding that her tribunal experience has left others at Sellafield, the largest nuclear site in Europe, even more scared to raise concerns than they already were.
Closing her interview, Alison recommended several changes employers could implement, many of which are echoed by those who have gone through the same system. Assuming basic training and policies are in place, she prescribed a confidential way for employees to report concerns, a whistleblowing champion within organisations that values people who speak up, and finally that litigation should only be used as a last resort:
First, “investigate, investigate, investigate” she implored, ideally using external investigators. “I think that would send a very clear message to employees that the company really wants us to speak out.”
See also: Sellafield try to shut down Alison's crowdfunding site (20 Nov)