OK then, what fascinating legal debate had to be undertaken before Stephen Cresswell ended up with over £300,000 to his name according to a Telegraph report (well, actually £192,000 after tax) at the overall expense of HS2 (well, actually the poor downtrodden taxpayer)? The quick answer, none at all once Mr Cresswell’s status as a worker had been determined two years earlier.
How come there was no legal debate in Cresswell v High Speed Two (HS2) Limited, fascinating or otherwise? In a word, admissions. Last July, HS2 conceded that Mr Cresswell had made protected disclosures about cost forecasting, exceeding a “funding envelope”, the understatement of costs coming out of a baseline estimate, and his belief that he would be sealing his own fate with HS2 by airing those concerns to seniors. Putting it colloquially, it was accepted that he had blown a thunderous blast on a large whistle, by citing failure to comply with legal obligations and the potential or actual commitment of fraud. Plainly there could have been no doubt about public interest, against that background.
In turn, HS2 conceded that Mr Cresswell had suffered detriment, partly by not being considered for two HS2 risk assessment consultancy roles, and partly by having his contract terminated.
What stands out here in particular is that the admissions were published on the Employment Tribunal Decisions website last July. Whether Mr Cresswell faced HS2 down over any demand or request for a confidential settlement, or whether HS2 accepted the walk of shame without objection, we will never know.
The remedies hearing, complicated as it must have been, took up 5 days of tribunal time. The parties’ comments to the media were consistent with the result. From HS2, it was “accepted that Mr Cresswell raised concerns as a whistleblower and was not then given the appropriate level of protection…..this is regrettable…” From Mr Cresswell: “HS2 is not an organisation that should be trusted with public money…..HS2 is destroying taxpayer value; a properly functioning administration would mothball the programme and undertake a full independent investigation.”
Are there any legal lessons that stand out? Perhaps, above all from an employer’s perspective, the need to treat genuine whistleblowers seriously and not to assume that a “we have bottomless pockets” approach will deter them from issuing and pursuing claims. A timely decision to seek outside legal advice, even if it might be to raise hands in surrender and reach for the cheque book (not both at once!), might just save a fortune.
Have you a whistleblowing issue to address, from either side of the desk, before it gets out of hand? We can help. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk .
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