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Employee Whistleblowing

What is “whistleblowing”?

Whistleblowing is a way in which workers can raise concerns about a serious matter which is in the public interest to be raised, typically involving serious wrong-doing by their employer, without fear of suffering negative consequences such as being dismissed or suffering any penalties. Raising such concerns is also known as making a “protected disclosure”.

If a worker is subjected to detrimental treatment as a result of making a protected disclosure, they have the right to complain to an Employment Tribunal.

Who is protected?

Employees have the right not to be dismissed or suffer any penalties as a result of blowing the whistle.  Additionally, “workers” also have the right not to suffer any penalties as a result of blowing the whistle. The meaning of “worker” in this context is quite wide and includes casual / zero-hour workers, as well as some self-employed consultants (where they provide work personally) and agency workers. In addition, even former workers are protected, for example, where an employer refuses to provide a reference to someone who blew the whistle in the past.

How does it work?

In order for a worker to be protected by whistleblowing law (under the Public Interest Disclosure Act 1998), they must first take the active step of making a “protected disclosure”.

Blowing the whistle must involve the following to meet the legal requirements, which must be assessed separately in each particular case:

  • Making a disclosure of information – whether verbally or in writing;
  • That disclosure must relate to certain types of malpractice or wrongdoing;
  • The worker making that disclosure must have had a reasonable belief that the information being disclosed shows one of those types of malpractice or wrongdoing;
  • The worker must have had a reasonable belief that it was in the public interest to have made the disclosure;
  • The disclosure must have been made to the worker’s employer or a responsible person.

What is a “disclosure of information”?

This will generally mean information that’s been disclosed in writing or verbally by a worker. However, it will usually be best for a worker to make their disclosure in writing, because verbal disclosures may give rise to a dispute later down the line as to what exactly was said.

If a disclosure is made verbally, we recommend that it’s followed up in writing – for example by circulating a note of what was disclosed verbally.  This is in the interests of both the worker and the employer, to ensure that there’s agreement about what was discussed and the nature of the complaint.

What types of malpractice are we talking about?

The worker blowing the whistle must be making a disclosure about one or more of the following types of malpractice:

  • A criminal offence;
  • A breach of any legal obligation;
  • A miscarriage of justice;
  • A health and safety issue;
  • Damage to the environment;
  • The deliberate concealing of information about any of the above.

The malpractice can be from the past, present or just alleged. It can also relate to the conduct of an employer, another employee, or even a third party.  It’s not intended to cover day-to-day complaints about an employer – these should be raised using a grievance procedure.

Does the worker have reasonable belief in the malpractice?

Under whistleblowing law, a worker doesn’t need to prove that the breach of a legal obligation or other malpractice that they’re complaining of is true. In fact, they just need to reasonably believe that the malpractice has occurred or is likely to occur.

Is it in the public interest?

In order for their disclosure to be “protected”, the worker must reasonably believe that the disclosure they’re making is in the public interest. This usually means that it should affect a large number of people (for example, many of the employer’s staff or customers), not just the worker who is making the disclosure.

In some circumstances, it may still be possible for a worker to argue that blowing the whistle about a breach of their own employment contract or employment rights can be in the public interest. For example, this might be the case in serious cases of discrimination or harassment by a large or public sector employer, where it would be in the public interest for the employer’s conduct to be called out and acted upon. However, most of the time, the disclosure must be wider than a dispute relating only to the worker in question in order to meet the public interest requirement.

Who must the worker blow the whistle to?

Usually, a worker will blow the whistle to their own employer, and the relevant legislation is drafted in a way that encourages this to happen. In fact, many employers will have a whistleblowing policy which names someone as a whistleblowing officer. However, a worker may also decide to blow the whistle to a person other than their employer who is responsible for the malpractice. Workers will sometimes also decide to blow the whistle to a regulator, such as the Health and Safety Executive.

Does the worker have to act in good faith?

No, a worker can technically blow the whistle in bad faith. Bad faith here essentially means doing so for personal gain rather than in someone else’s interests. However, whether the worker has acted in good faith will affect the compensation that they’re awarded if they win their case. For example, compensation can be reduced by up to 25% if a worker has blown the whistle for personal gain rather than in good faith.

What happens if a worker is disciplined after blowing the whistle?

If a worker has made a qualifying disclosure, they are protected by law against any negative consequences as a result of that disclosure.  These penalties could include things like facing hostility from the employer, being demoted, having benefits or bonuses withheld, being harassed or victimised being pressured to resign, or being treated unfairly in other ways.

If a worker can prove that they’ve been penalised as a result of blowing the whistle, the employer would be liable for compensation.  However, disputes arise where a worker has been disciplined, or even dismissed, but the employer says that the action was taken as a result of issues other than their whistleblowing (for example, pre-existing poor performance).

Why do employers fear whistleblowing claims so much?

Whistleblowing claims are particularly dangerous for employers, because:

  • a worker doesn’t need a minimum period of service with an employer in order to bring a whistleblowing claim to the Employment Tribunal (unlike for ordinary unfair dismissal, where an employee must have completed 2 years’ employment in order to bring a claim).
  • there’s no cap on the compensation that can be awarded (meaning that compensation can be high in certain circumstances, in particular where the worker suffers a large financial loss as a result of raising concerns).

How important is it to have a whistleblowing policy?

Very important. There are some circumstances where it won’t be appropriate to deal with issues raised by a worker through a grievance process – e.g. because the worker wants to raise an issue anonymously without the formalities of a grievance process. Having a whistleblowing procedure or policy can provide a safe and clear route to deal with serious issues that are raised by workers, and by being alerted to these issues early, an employer can take proper steps to resolve the situation, potentially prevent longer-term reputational damage, and minimise risk to them.

If you need any advice on whistleblowing, please contact a member of our employment law team in confidence here or on 02920 829 100 for a free initial call to see how they can help.

To speak to one of our experts today, please contact us on 02920 829 100 or by using our Contact Us form for a free initial chat to see how we can help.

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