The treatment of whistleblowers by their employers has long been hitting news headlines. As recently as January 2015, a report of the Health Select Committee acknowledged that the failure to protect whistleblowers remains a “stain” on the reputation of the NHS in England and going as far back as the controversy of whistleblowers disclosing details of HBOS’ excessive risk-taking as the financial crisis took hold.
The most recent statistics from Public Concern at Work state that in 2011/2012, 2500 applications were made to the Employment Tribunal under the Public Interest Disclosure Act 1998 (the Act), which is a huge increase from the 157 applications made in 1999/2000, when the Act first came into force. It has therefore become increasingly more important for employers to understand how best to deal with whistleblowers and how to avoid ending up in the Employment Tribunal.
The starting point for employers is to have a whistleblowing policy in place. This is essential. Given the nature of whistleblowing, the first thing a tribunal will look at is whether there were mechanisms in place to enable an employee to whistle blow and to investigate and provide protection following that.
What Is Whistleblowing?
Whistleblowing is the disclosure of information which relates to suspected wrongdoing or dangers in the workplace, relating to:
- A criminal offence;
- Breach of any legal or regulatory obligation;
- Miscarriage of justice;
- Danger to the health and safety of any individual;
- Damage to the environment; or
- The deliberate concealing of information about any of the above.
How Does A Whistleblower Qualify For Protection?
To qualify for protection, a whistleblower must make a qualifying disclosure and the disclosure must be protected.
For a disclosure to be qualifying it must:
- Actually disclose information, rather than merely threatening to make a disclosure;
- Relate to one of the six subjects above;
- The worker must have a reasonable belief that the information shows one of the above failures; and
- For disclosures made on or after 25th June 2013, the worker must have a reasonable belief that the disclosure is in the public interest.
Whether a disclosure is protected broadly depends on who the disclosure is made to. An employee can make a protected disclosure internally or externally. However, there are further conditions if the disclosure is made externally, depending on the identity of the third party. Disclosures to particular people/organisations under a list called “prescribed persons” are likely to gain protection very easily. However, wider disclosures, such as to the police or media, will only qualify for protection in very limited cases.
What Protection Does The Law Give To Whistleblowers?
The dismissal of an employee, where the principal reason is because they made a protected disclosure, will be automatically unfair. This means that a Tribunal will not look at whether it was reasonable in all the circumstances to dismiss the employee – see our guide to fair dismissals.
If a Tribunal finds that the principal reason for dismissal was the protected disclosure, as a matter of fact, then the dismissal was unfair.
It is also unlawful for an employer to subject its workers to unlawful detriment because they made a protected disclosure. Unlawful detriment can include disciplinary action, loss of pay, damage to career prospects and exclusion from promotional opportunities.
Practical Tips For Managing Whistleblowing In The Workplace
It is important that employers provide employees with the opportunity to raise their concerns, that they thoroughly look into the concerns raised and implement any corrective action necessary. Employers must also ensure that employees who raise concerns do not suffer detrimental treatment or dismissal because of their disclosures.
Our recommended tips for employers are:
- Implement a whistleblowing policy setting out that disclosures should always be made internally first and providing employees with the details of how to make a disclosure. We can assist your business develop a bespoke policy;
- Publicise the whistleblowing policy and provide training for employees, particularly at managerial level as they are likely to be the recipients of disclosures. We can provide on-site training or training at our offices if required;
- Consider appointing a designated whistleblowing officer, preferably someone who is approachable to staff; and
- Foster an open working culture and encourage positive supervision and close team-working, with employees being actively encouraged to report their concerns early.
Get In Touch With Us
We can provide whistleblowing policies bespoke to your organisation and assist you through what are often difficult situations. If you need any assistance in this area, please contact a member of our team for more information on whistleblowing.