Whistleblowing in the COVID-19 era - ThinkHouse Foundations

James Hall: Good morning everyone and welcome to our webinar this morning on whistleblowing in the COVID-19 era. This is number three in a series of webinars that we have run this autumn in place of our usual in-person ThinkHouse Foundation events. We have previously had webinars on privilege: what you need to know, and an interactive session on delivering excellence. A recording of the privilege session is available on our website so please do take a look if you were not able to join that one live.

My name is James Hall and I am one of the co-chairs of ThinkHouse Foundations having recently taken over from my colleague, Emma Bufton. I am an associate in the employment team here at Gowling WLG and am currently on secondment to the Government Legal Department. As you hopefully know as you have joined today the ThinkHouse Foundations programme is aimed at in-house lawyers, those who are just starting out in their legal careers all the way up to those who are 5 years PQE or thereabouts.

So today the topic is whistleblowing in the COVID-19 era, and as I am sure many of you can agree the onset of the pandemic meant usual working practices for many of us and many employees changed almost overnight. As our response to the pandemic continues to evolve there is emerging evidence of an increase in whistleblowing reports made by employees since it all began. I am joined by my colleague Kiran Gosal, an associate in the employment team here at Gowling WLG, and Kiran is going to take you through the basics and highlight some of the challenges facing employers when responding to whistleblowing reports during the pandemic and offer you some practical tips for addressing those challenges.

Kiran is going to speak for 30 to 35 minutes and then we will have some time for questions at the end and look to draw the webinar to a close at around 10.45am, but before I hand over to Kiran I have a couple of housekeeping points to run through. As I mentioned if you would like to ask a question then we are using the Q&A function on Zoom so you will find that at the bottom of your screen, click on there and type in your questionnaire and you will directed to me and Kiran. There is no such thing as a silly question so please feel free to ask anything and we will do our best to answer as many of those as we can at the end of the session. I cannot guarantee that we will get to them all but we will come back to you if we can directly after the webinar. Secondly this webinar will be recorded and you will send an email with the recording early next week so do feel free to share that with colleagues who cannot make the live recording, and finally at the end of the webinar there will be a link in your browser to complete a very short feedback questionnaire on this webinar and please do take a few minutes to complete that if you can and send back to us and we do read them and your feedback will help to shape future sessions and we would be really grateful if you could do that and we will also send a link to complete the feedback form when we circulate a recording of the webinar next week in case you do not have time to do that today. Without further ado I will hand over to Kiran.

Kiran Gosal: Thanks James and welcome everybody. As James mentioned in today's session on whistleblowing, I plan to take you through at quite a high level the basics of the law on whistleblowing and the protections that are in place for those who blow the whistle. Take a look at what the COVID-19 pandemic has meant for whistleblowing and then to consider some of the challenges that employees and that you are their in-house legal advisors face when identifying and responding to whistleblowing disclosures, particularly in light of the pandemic, and to share some practical tips for addressing these challenges. Before I do that thought I just wanted to take a couple of minutes to look at the broader picture to consider what whistleblowing is and why it is an important topic that should be a key part of every organisation's risk management agenda. So setting the legal principles aside for a moment if you can see on the slide there a whistleblower is defined in the dictionary as a person who informs on another or makes a public disclosure of corruption or wrongdoing and it is a concept that I think on the face of it can have quite negative connotations because we are taught from a young age that nobody likes a tell-tale or a snitch and I think the idea of somebody blowing the whistle brings that sort of an image to mind. But actually that is not what a whistleblower is doing at all and it is the second half of the definition that is key and that can help us to understand why infected whistleblowing framework is such an important risk management tool and this is because a whistleblower is essentially somebody raising a concern that something is not quite right and that it needs looking into. I think one of the simplest ways to illustrate this practically is to drawn an analogy with the warning lights on a car dashboard, so a whistleblowing disclosure in your organisation is essentially that light flashing up on the dashboard. Now it might be that once you have checked the oil or the type pressure or whatever it is that the light is warning you about it actually all turns out to be fine, but of course the important thing is that you had the warning and the opportunity to look into it before getting back out on the road, and effective framework in your organisation operates in exactly the same way. You want to know about potential problems in the organisation as soon as possible and if whistleblowing disclosures are identified and handled correctly that is exactly what you can do. Actually if it done right an effective whistleblowing framework can have positive implications beyond just identifying wrongdoing it is if you create a culture where people feel comfortable raising their concerns they will feel comfortable speaking up about ideas for example to improve processes and that can have positive impacts on things like employee engagement and productivity and also just the kind of general wellbeing of the workforce because they feel listened to. Now the flip side of this of course is that whistleblowing disclosures are not handled correctly or not handled at all can be problematic. It can be costly and time consulting both in terms of the potential for them to lead to employment litigation but also the negative PR implications which we have seen in the media recently so with all of that in mind as context, let us move on to the next slide and look at the legal framework.

So I will start this section by saying that the law on whistleblowing is quite technical and it involves lots of different tests and because of the time constraints I have on the session today I will not go into huge amounts of detail but will instead provide a general overview of the key areas. The whistleblowing legislation was introduced in the late 90s and it is rooted in the Public Interest Disclosure Act 1998, which is known as PIDA for short, and PIDA inserted various new statutory protections into the Employment Rights Act 1996. Now this legislation came about after a string of public enquiries in the late 80s and the early 90s, which all looked at major scandals and disasters so things like the Clapham rail disaster. It came to a common conclusion which was that the employees within the organisations involved had known that something was wrong but had not spoken up about it either because they were worried about the repercussions for them or just because they did not know who to speak to. This is because before PIDA came into force if somebody raised concerns about wrongdoing within their organisation would likely have been met with disapproval. They might have faced criticisms or poor appraisals or actually even been dismissed for what was seen as a breach of confidentiality. So as the name suggests the Public Interests Disclosure Act was intended to address this to encourage the disclosure of information that is in the public interest by providing the individuals who make those disclosures with protection against retaliation.

So the logical next question then is who is protected? Now because of the policy reasons behind the whistleblowing legislation the coverage of it is quite wide and it is certainly not restricted just to employees. In effect pretty much everybody who operates routinely within a workforce benefits from the protection of the whistleblowing legislation and this includes among others agency and freelance workers, seconded workers, home workers and trainees. It even covers former employees and workers so while individuals who apply a job, so candidates, are not covered, people who have worked for the organisation and made a disclosure while they did so can make a claim after their employment ended if they feel they have been subjected to a detriment because of it. It is quite unusual for this kind of claim to come up but it could happen if for example if there is a refusal to provide a reference or perhaps a refusal to consider that person in a future recruitment exercise.

So no report of alleged wrongdoing will benefit from the protection that is offered by the whistleblowing legislation and in order to attract protections you can see on the slides there, the individual must make what is known as a protected disclosure. Now I will come on to explain exactly what that means in the next couple of slides but essentially whistleblowers can make a protective disclosure are offered two key forms or protection. The first is protection against unfair dismissal and this is a right that is available just to employees. It means that the dismissal of a an employee will be automatically unfair if the reason or the principal reason is that they made a protected disclosure and this protection applies equally to selection for redundancy, so again they cannot be selected just because they have made a protected disclosure. There is no qualifying minimum period of service to benefit from this protection as against the two years' services that employees generally need to have to bring an unfair dismissal claim, and if the claim is brought and it is successful there is no cap on damages that can be awarded so it could potentially be quite a costly claim.

The second form of protection that is offered, and this is one that is available to everybody who is covered by the whistleblowing legislation, is protection against unlawful detriment. This is the idea that individuals who blow the whistle are protected from being subjected to any kind of detriment by any act or failure to act that happens on the basis that they made that disclosure. Now the concept of detriment is not defined specifically in the legislation and it is something that tribunals can make a decision on a case by case basis but some of the types of behaviour that are typically helped to be an unlawful detriment are things like subjecting a person to a disciplinary process just because they have made a protected disclosure, or passing them over for promotion.

So what is a protected disclosure? Well essentially it is a qualifying disclosure that is made in a protected manner. So looking first at the qualifying disclosure element of that definition, it is there on the screen in full, but essentially there are three key requirements for a qualifying disclosure.

So the first relates to the subject matter of the disclosure, which is that it must be in relation to one or more of the relevant failures that are listed there on the slide. Quite often it is a disclosure in relation to a criminal offence but particularly this year there are more and more that relate to flagging health and safety concerns.

The second is that it has to be disclosure of information not of opinion or an allegation. Now in practice the key are often intertwined and disclosures are often shared as part of wider grievances or complaints. An example of this would be Alan saying to his line manager "oh well I think my colleague David he must be involved in something that is a bit dodgy, how else could be afford all of those new designer clothes that he is always wearing. He is more focused on talking about those than he is about recording stock correctly. His last two reports have had items missing and me and the other team members have to keep checking them." Now on the face of it that seems as though Alan has just got a personal grievance against David, but actually there is a disclosure of information in there which is that the stock reports have had items missing and if the other criteria are satisfied it might be that it amounts to a protective disclosure so a couple of other points that it is worth flagging in this context. The first is that the fact that the person receiving the information already knows about it so if for example Alan's line manager was aware that the stock reports had had items missing, it would not stop it from being disclosure. It can be made in writing or verbally and several communications accumulatively can amount to a disclosure even if each individual communication does not so this is most likely to happen probably in an email chain for example if a number of emails are sent and taken together they satisfy all of the criteria.

So the third and final element of qualifying disclosure relates to the nature of the worker's belief. So there has to be a reasonable belief in the information that has been disclosed and it also has to be in the public interest. Now the reasonable belief element it looks subjectively at what the individual who made the disclosure believed but it has to be objectively justifiable too, even if it later turns out to be a mistaken belief. So again looking at some examples of this if Tracey sees her colleague talking money from the till and it later transpires that actually the colleague had authority this might still be a protected disclosure because she had a reasonable belief at the time that she made the disclosure that the colleague did not have authority to take the money. Compare that though with a doctor who claims that the temperature in the lab that he was working in is so low that he is at risk of contracting pneumonia, this was actually a matter that was considered by the tribunal and it was found that the doctor did not have a reasonably held belief because pneumonia is not contracted in cold conditions and as a doctor that is something that he should have known.

As well as being a reasonable held belief it has to be in the public interest. Now there are no absolute rules on what is reasonably considered to be in the public interest. In some cases so disclosures particularly at the moment about social distancing rules not being followed for example it is quite obvious that the public interest disclosure test is met, but in others it is not always quite so clear. What I will say about this test before moving on is that generally speaking it is low threshold and as long as the person that blows the whistle can show it has impacts beyond just them as an individual it is more likely it will meet the test.

As well as being a qualifying disclosure it needs to be made to specific people in order to benefit from protection under the whistleblowing legislation. There are seven categories of individual or body that the disclosures can be made to and they are set out there on the slide. What I will say about this is that legislation is set up to encourage disclosures to be made to the employer in the first instance, and an individual who makes the qualifying disclosure to their employer will have far fewer hoops to jump through to secure the protection of the whistleblowing legislation than somebody who is looking to make that disclosure to a complete outsider. This is because the requirements that need to be satisfied before the disclosure qualifies for protection increase as you work your way down this list.

So looking at a couple of the categories briefly at number five, there is disclosure to a prescribed person such as a suitable regulatory or an inspector to disclose to a prescribed person and benefit from the protection of the whistleblowing legislation the individual has to show that they reasonably believe that the information falls within the remit of that prescribed person and that is substantially true.

The tests that need to be met increase further when you get to category six and seven which is wider disclosure to an external body or of an exceptionally serious failure. In these cases the disclosure is only protected if the worker reasonably believes that the information is substantially true and does not act for gain and also, unless the disclosure is one at category seven there an exceptionally serious failure, the individual must already have disclosed to the employer or to a prescribed person or believe that if they did that it would mean that evidence was destroyed or that they would suffer very serious repercussions. So as you can see it is much higher bar the further you get down that list than it is making a disclosure directly to your employer.

So having looked at the whistleblowing framework are there any exceptions? Well there are two key situations in which a disclosure of information will not constitute a qualifying disclosure even if it satisfies the criteria in all other respects. The first is where the disclosure of information is itself a criminal offence so for example something which breaches the Official Secrets Act and the second is where a disclosure of information amounts to a breach of legal professional privilege so this exclusion will of course apply to all of you as in-house legal advisors and essentially what it means is that you will not be able to bring a whistleblowing complaint on the basis of information that has been disclosed to you so that you can provide advice to the business.

So again looking at this in context of a tribunal claim that was actually brought, the GC of an organisation claimed to have made a protective disclosure when she flagged to senior management that a proposal that was put to her by the CEO which was to require a senior employee to sign up to a restrictive covenant in exchange for being allowed to participate in the a share incentive scheme was a breach of contract. She said that this amounted to a protective disclosure but actually the tribunal found that because the CEO had disclosed the proposal in the course of obtaining legal advice the information part of the disclosure was privileged and so it did not qualify for protection.

So moving away from the kind of the strict legal framework then what impact have we seen the COVID-19 pandemic having on whistleblowing exposures? Well I think the pandemic has really thrown a spotlight on the importance of whistleblowing as a risk management tool, and it has also really highlighted the perils of not taking the concerns that are raised by a whistleblower seriously. I think this is best demonstrated in the context of the pandemic by the doctor in China who tried to raise the alarm on coronavirus in late December 2019, by flagging to his fellow doctors his concerns that the virus was showing early signs of human to human transmission. The response from Local Government in that case was to send the Police around to threaten him and force him to sign a statement saying that he would not as they put it make any further trouble. So a classic example of how not to handle a whistleblowing disclosure.

As you might expect there has been a marked increase in disclosures during lockdown particularly concerns relating to health and safety breaches, and Protect who are the UK's whistleblowing charity have reported a 37%25 increase in calls to their helpline in the period between March and September 2020. Unfortunately a report that they published just last month which analysed over 600 of these calls showed that 41%25 of callers who flagged concerns relating to COVID-19 were ignored, and 20%25 of them said that they were dismissed after they raised their concerns.

So of course the reports that I have just referred to and the ones that we often see in the media tend to relate to very high profile or very topical whistleblowing scandals but actually disclosures come in all shapes and sizes and they all matter, so how should you be thinking about addressing whistleblowing disclosures in your organisation? Well I think one of the key things, if you have not got one already, is to have a whistleblowing policy in place. Now with a few notable exceptions the law does not actually require organisations to have a whistleblowing policy in place, but having one shows that you are committed to listening to and addressing the worker's concerns. The policy ideally should clearly set out what is covered and what is not covered, how and to who concerns should be raised, and what will happen following a disclosure being made.

So what are some of the key things that you should think about when you are putting a policy in place and when you are looking to implement it? I think we can break it down into four key categories which are outlined on the slide there.

The first stage is the identification at the planning and the analyst stage so if you have not already think about appointing a designated individual or a team who are trained in the policy, and make provisions for those individualise to be outside of the usual line management reporting lines because it might be that individuals do not feel comfortable raising their concerns to their line manager. Then when you do receive a whistleblowing disclosure setting out the alleged wrongdoing from kind of personal grievances or complaints and consider what the best course of action is.

Now in the vast majority of cases it will be form of investigation of some sort. Investigations is quite an extensive subject and it could be a session all of its own but the important thing to remember is to be very clear at the outset about the scope of the investigation and to make sure that it is proportionate with the disclosure that has been made. Some of the other things that you would think about is who should run the investigation, what witnesses if any you need to participate in the investigation and what evidence you need to gather and even actually it might be appropriate to consider a short term suspension of anybody involved.

So once you have been through the investigation process, you need to think about how you will communicate the outcome in the reporting and you need to think about this both internally and in some cases also externally because there will be certain industries, for example the financial services sector, where there are additional regulatory obligations. You also need to think about the individual who has made the disclosure because it is likely that they will want an update on the progress of the investigation along with status. This will differ depending on the subject matter of the disclosure but it is very important that we keep them in the loop because if they feel that the matter has not been addressed or investigated they might look to escalate it outside of the organisation.

The final category or stage is the kind of remediation learning stage which can be easily overlooked I think once the formal investigation reporting is done. It is important that once you have done that to kind of carry out an assessment of what has been learned and to implement any learning or training that is needed to avoid the issue arising again.

So what are some of the challenges that face employers and you as their in-house legal team when you are looking at addressing a whistleblowing disclosure? Well I think one of the first and actually the most important challenges which I have touched again a little earlier is just identifying the disclosure as a potentially protected disclosure. Now this is certainly not a new challenge in a busy organisation, but it is probably one that has been amplified somewhat by the demands that are being placed on everybody by the pandemic, both in terms of our new ways of working and also just generally dealing with all of the conflicting pressures that we face. Compared with the old style kind of traditional office so on-site working structure the mass shift that we have had to remote working might mean that visibility over reports is reduced, or that they are just not identified in the organic way that they would have been previously. It is incredibly unusual for an employee to come to you and say "I am now about to make a whistleblowing disclosure under this section of this piece of legislation". Quite often it is a more organic conversation where a concern is flagged, so particularly at the moment you might be mentioning that a colleague is not following the distancing or the one way system that is in place in the office and that could amount to a protected disclosure but might not be identified as such.

So in terms of how you look to address this, well I think one of the key things is training and making those who might be receiving the protected disclosure on the frontline, so particularly line managers, very aware about the ways in which these kinds of informal conversations might actually translate into a protected disclosure. Linked to this is the idea of having a named person or a named team within your organisation understand what whistleblowing is can act as that point of contact for the line managers both when they would definitely see the report but also when they have had a conversation that they think might be a protected disclosure it is really useful to have a defined point of contact that they can go to and just kind of bounce the ideas around.

One of the other things that you could think about is maybe introducing a confidential whistleblowing hotline, I say hotline but actually more and more of these systems now are online platforms that employees can use to raise any concerns that they have about wrongdoing. They tend to be operated by third parties which can be quite useful because the interface is completely different to that of the company and it can give comfort to the person who is raising the disclosure that they are not snitching on their employers so to speak.

Then finally particularly while we work but even actually going forwards as we start to move out of the pandemic, think about reutilising things like social media platforms and internal employee polls, these are really useful platforms I think to just kind of keep your ear to the ground and identify early any concerns that might actually translate into full blown disclosures.

The second of the challenges and again not one that is new but probably one that has been affected by the pandemic is carrying out an effective investigation. There is likely some important practical and process differences that are already in play or that will come into play as you look to carry out investigations. So for example your investigation team are likely working remotely and meeting remotely so it is important that you take care to ensure there is a robust audit trail of the decisions that they are making because they think it is much easier when you are kind of jumping from meetings to perhaps forget to do that as compared to when you are all sat round the room having a conversation.

Interviews with witnesses again is something that is probably being carried out remotely and I think while we have all become very familiar with using video conferencing platforms it is important to remember that they are not always ideal for everybody, whether that is because they do not have internet access or because they have problems communicating using remote means. So it is important that your process allows for this and think about offering alternatives to that the process is accessible for everybody.

Also evidence is another thing to think about because again it might be disbursed now in employee's homes as opposed to in the office as it once would have been. So the key message here really is to think about new ways of working which will be different for every organisation and to adapt the processes that you have in place or to build out new processes that are based on these new ways of working and account for them.

Then the final challenge that I wanted to flag particularly at the moment when people might be feeling vulnerable or worried about the possibility of losing their jobs, is the idea that there is this potential for strategic whistleblowing disclosures to be made. So these are concerns that are flagged by an employee either during the course of a HR process or when they suspect one might be coming, so if for example there are rumblings that there might be a redundancy process being considered you can sometimes have a flurry of protected disclosures made. Now I think the important thing to flag about this kind of disclosure first of all is even if you suspect that it has been made strategically with the intention either of stalling the HR process or setting the employee up for a more favourable position in any kind of settlement negotiations, it is important that you do not just discount it on the basis that you suspect it is strategic, and that you consider it and redress it in the same way that you would with any other disclosure.

In addition to that, and this is something that is important in every case but particularly in this kind of case where you suspect that it might be strategic or that it might actually lead to a claim, it is important that you keep a very clear and accurate paper trail during the investigation, documenting the decisions that are made and documenting the rationale so that you have that to hand if actually you do need to later defend the tribunal claim.

I would like to leave you with three key tips or takeaways from the procession which tie into the points that I raised at the very start around whistleblowing acting as an early warning system and really a very useful part of the risk management agenda of your organisation.

So the first tip is to have a clear policy in place and to frame it positively. So if you don't already have one perhaps think about putting one in place, or re-visit the one that you do have to make sure that it is up to date and that it reflects current ways of working, but also that it is accessible to everybody that it needs to be particularly at the moment where some of your workers might be on-site and some might be working remotely. They might be working across different systems, it is important it is accessible to everybody and you know where to find it. Also think about moving away from the negative connotations and the stigma that is associated with the term whistleblowing. So you might think about referring to the process as one of speaking up, and renaming your policy even as a speak up policy rather than a whistleblowing policy.

The second tip is to work together and to keep it on the agenda. So publicise the policy, make it clear that victimisation or retaliation against individuals who look to make whistleblowing disclosures won't be tolerated. It is important to keep it on the agenda for everybody so not just those who can make protected disclosures but also those who will have a role to play when a whistleblowing report actually comes in. So it is likely that you will have a number of different departments at this point that need to work together to address the disclosure and to carry out the investigation so compliance, HR, legal will definitely have a role to play and it is important that they will understand what that role is and how to work together so that any disclosures can be managed in the best way possible. You might also consider keeping some sort of central log or record of disclosures that are made and the investigation outcomes. This can be a really useful way to support trends and it can act as a springboard to implement any learnings that you might identify based on disclosures that are made. So appoint a person or a department that has responsibility for this, for keeping it up to date and don't forget to look at it regularly.

Then the final tip that I have is that prevention is better than cure. So absolutely remind employees of their right to blow the whistle, but wider than that try and promote a culture that aims to stay ahead of any potential concerns. So think about refresher training for managers or for key stakeholders that focusses on encouraging and promoting an environment where it is safe to seek up because if the workforce know that their input is valued and that they will be heard then they are much more likely to raise issues early, which is really what you are aiming for and reflects really a positive culture and a positive working environment.

So that is everything that I had to say today and I will pass back to James now to see if we have time for some questions.

James: Thanks Kiran that is great. We have had a few questions come through and so I will just give you a chance to catch your breath, take a drink and so thank you to everyone who sent in questions. The first one is "What should my organisation do if an employee asks to remain confidential and anonymous when making a whistleblowing disclosure. Can we honour that request?"

Kiran: Yes, it's a good question. I think you absolutely can, provided that there is not a legal or a regulatory reason that you can't. So the message really is to try and honour it as far as possible and definitely don't ignore a disclosure on the basis that somebody asks to keep their identity confidential. You should ideally deal with it in kind of a broadly similar way as you would if the person was happy for their identity to be disclosed. I think it is important particularly in the context of somebody who says can you please keep my identity out of this, can you keep it confidential, that you reassure as to how you are going to manage that and that you let them know how you are going to restrict their identity to just those people who need to know about it. So things like thinking about using a code name not just their initials, so that it is not obvious if you are talking about them in written communications who they are. And also how you are going to keep them updated. The anonymous situation is slightly more challenging I think because you don't know actually who they are but again similar principles but you won't be able to keep them up to date. So ideally you would address that in your policy so that individuals know how it will be dealt with particularly in the anonymous situation, you know, the fact that you won't be able to update them.

James: Ok, great, very helpful, thanks. We have had another question in here, which says "I have heard from a colleague that you can't stop someone from making a whistleblowing disclosure under a settlement agreement. Is that correct?"

Kiran: Yes, you can't stop whistleblowing disclosures under a settlement agreement so any kind of confidentiality provision that you have in settlement agreement or in a CoT3 that tries to prevent an individual from making a whistleblowing disclosure that will be considered completely void. So you can include confidentiality clauses but to be safe you should be very clear that protected disclosures are carved out so the individual can bring those even if they sign a settlement agreement or a CoT3.

James: Ok, that is great. So another question here which sort of relates to the previous one which says "If a whistleblowing claim has been made and then as part of an exit agreement can you waive that claim as part of a pay-out deal?" So I think that question is effectively is it possible to settle a whistleblowing claim in the way you would any other kind of sort of traditional tribunal claim with a settlement agreement?

Kiran: Yes, you can do that if that claim has already been brought and that the agreement is that all claims are being waived then yes. You can't, forward looking, you can't prevent somebody from bringing a claim.

James: Great. Thanks Kiran. So I think we have got time for probably one more question which came in earlier on and refers back to your slide I think when you mentioned detriments and the protection that whistleblowers afforded. The question essentially is "Do you have any examples of a what a detriment might be because the question relates to if someone blows the whistle and then feels that they have been missed out for a promotion or a role they have applied for as a result. Do you think that might be a detriment?

Kiran: I think it is really quite difficult to define it but in that kind of situation if the individuals got really positive, you know, performance reports and was for all intents and purposes on track for a promotion and then they make a disclosure about I don't know at the moment it might be PPE is not being used and suddenly actually all those conversations just disappear, that is the kind of thing that is likely to be considered a detriment. I mean it will depend on the evidence obviously but there is a kind of real about turn about how they are being treated. That is the kind of thing that could just lead to the potential for a claim to be brought and I think in some cases that is as important as whether or not you are eventually successful at tribunal because of the cost and time that is associated.

James: Yes that's great. Ok, fantastic. So it is just coming up to 10:40 now and that is all the questions that we have time for so thank you to everyone and if we weren't able to get back to you we will certainly do that offline. Do keep an eye out for our future series of events that we will be bringing to you in the New Year. Potentially more webinars for obvious reasons but make sure you are signed up to our emails and our mailing list if you are not already and do share that with colleagues who you think might be interested, and thank you again very much to Kiran and before I close I will just remind you one more time about that feedback questionnaire if you do have time to fill that in and so yes, thank you very much for listening and enjoy the rest of your day.

Kiran: Thank you.