Offering disgruntled workers a fat cheque to quit is not blackmail, a court has told Capita.
Capita accountant Mowe Saha claimed she had been retaliated against by the infamous outsourcing badass after whistleblowing and refusing to accept a roster that included working for 12 days straight (a total of 76 hours) immediately after the New Year holidays.
She alleged in an email to her managers that this was a breach of the EU Working Time Regulations, which guarantee a 24-hour period off for every seven days worked, and refused to accept the roster.
Yet the Employment Appeal Tribunal (EAT) ruled late last week that an offer of £10,000 to leave the company immediately was not blackmail – and rejected her claim that Capita managers threatened to sack her unless she took the money and went.
In an email titled "whistleblowing and blackmail", which was reproduced in the EAT's judgment, Saha told Capita's then-group finance director Nick Greatorex on 7 December 2015:
I suffered a particularly distressing situation on Friday (4th December 2015, 10am, Room G.03 Rochester Row Office) where Simon Mayall [then the deputy Capita group financial director] offered me £10k to leave Capita with only a few hours notice. As I had taken Lizzie O'Brien to this "informal" meeting, Lizzie was able to speak on my behalf and stated, quite reasonably, that a few hours notice was not acceptable – therefore, the deadline was extended to COB today.
I would like to know whether or not you are aware of this "without prejudice" offer?
Are you also aware that without prejudice does not stand in cases such as bribery, blackmail or whistleblowing?
Is the offer made:-
- because I exercised my right to not work 76 hour weeks without a break as this would be detrimental to my health and safety? Or,
- because I have escalated only two issues to you under the Capita open door policy (Co 05 Property Refurbishments and the PC Refresh Project)?
Simon Mayall stated that he "couldn't have me escalating issues to you", and if I didn't take the £10k offer then I would be managed [presumably out] via my sick records.
Is that not bribery to keep my mouth shut and blackmail to take the offer?
I was not aware that my work was in question in any way and I have proven exceptional relationships with all my business contacts with improved business behaviour over the past two years.
If anything, I have gone above and beyond to benefit the company and this is how I am treated.
In arguments before the London-based EAT, which sat on 30 July this year, Miss Saha, who was appealing against a 2017 ruling of the Employment Tribunal (ET), said she believed that she was being blackmailed into leaving Capita. She said that her refusal to accept the 76-hour roster was a "protected disclosure" under the Employment Rights Act because she was alerting senior managers to a breach of the EU Working Time Regulations.
Had Saha's argument been accepted by the lawyers and judges, Capita would have been legally prohibited from retaliating against her whistleblowing email about the roster, and the £10,000 offer could have been ruled illegal.
However, the Honourable Mrs Justice Slade DBE ruled that Capita's behaviour was quite all right, stating: "An offer of a sum of money to an employee to leave in circumstances in which relations between the parties had broken down, is so far from blackmail that the ET [employment tribunal] were fully entitled to hold that the Claimant did not hold a reasonable belief that it was such."
The judge added: "In this case the ET did not err in holding that the belief that an offer of £10,000 to leave the company was bribery or blackmail was not reasonable. Since such a belief was unreasonable the ET did not err in not finding that the disclosure was in the Claimant's reasonable belief made in the public interest."
According to a transcript of the 2017 hearing (PDF), Saha had previously fallen out with various people inside and outside Capita's finance department, including her line manager, who said she'd been prescribed high blood pressure tablets while she was managing Saha, as well as various directors across Capita whose departmental accounts Saha handled. She also sent emails to Capita group board members, escalating issues she felt had not gone her way.
Summarising the appeal, Mrs Justice Slade ruled that one of the grounds of appeal – that the ET had failed to consider whether Saha's email of 1 December 2015 about the roster was a protected disclosure – succeeded in law. She ordered the same ET panel to re-hear that part of the original case. Saha's argument that her email of 7 December (reproduced verbatim above) was a protected disclosure was dismissed. ®