What is whistleblowing?
Whistleblowing is the term used when a worker or former worker passes on information concerning wrongdoing in the workplace to managers who have the power and presumed willingness to take corrective action. It is more usually known as “making a disclosure in the public interest” . The wrongdoing will usually although not always be something the worker or former worker has witnessed at work.
To whistle blow on your employer is a big step to take and the consequences can be far reaching. In some cases, employees who have whistle blown on their employers have lost their jobs.
Whistleblowing law is set out in in the Employment Rights Act 1996 (ERA 1996) (as amended by the Public Interest Disclosure Act 1998). The ERA 1996 gives a worker the right to lodge a claim in the Employment Tribunal if they have been victimised at work or they have lost their job because they have ‘blown the whistle’ on their employer.
The law does not currently require an employer to have a whistleblowing policy. However as an employer it is good practice to have a whistleblowing policy as this would assist in creating and nurturing an open, safe and transparent working environment where workers feel able to speak up.
Having a whistleblowing policy demonstrates the employer’s commitment to listen to workers concerns and to take the necessary steps to address any concerns that may be brought to their attention.
How are whistleblowing concerns distinct from grievances?
A whistle blower is an employee with a concern about danger or illegality that has a public interest aspect to it, usually because it threatens others. A grievance or private complaint is by contrast, a dispute about the employee’s own employment position and has no public interest element.
What does the law say?
The Public Interest Disclosure Act 1998 (PIDA) came into force on 2 July 1999. The Act protects workers that disclose information about malpractice at their place of work or previous place of work as long as certain requirements or conditions are met. The conditions relate to the nature of the information disclosed and the person to whom the information is disclosed. The Act gives a list of Prescribed Persons under the Public Interest Disclosure (Prescribed Persons) Order 2014 to whom the whistleblowing disclosures should be made. The intention of the Act is to ensure that whistle-blowers are protected from dismissal or victimisation from the employer.
The whistle blower will receive legal protection provided he/she holds a reasonable belief that the information they have disclosed is true. If these requirements are met, the Act protects the worker from suffering detriment from the employer as a result of having made the disclosure. If the worker’s disclosure(s) do not meet the requirements, the disclosure by the worker may as a matter of fact be a breach of the worker’s duty of confidence to his employer. the ACAS
Can whistle-blowers be anonymous?
Yes. It is possible to be an anonymous whistle-blower. However, if a whistleblower does not provide their contact details it may be difficult for the employer to investigate the concerns particularly if additional information is required..
What you should know about whistleblowing
For a worker’s disclosure to be classified as “whistleblowing” the information that is disclosed must be a “qualifying disclosure” i.e. it must be serious and in the public interest. Most organisations that employ staff would usually have a staff grievance process which allows employees to raise grievances to senior management . A grievance is a concern that relates to an issue or issues of personal concern to the member of staff eg bullying, harassment and or discriminatory treatment by a manager to a member of staff.
Disclosure of information by a whistle-blower is somewhat different as it usually relates to a matter or matters that may not personally impact directly on the worker but will have an impact on the employer or a third party eg staff including the worker or third parties eg members of the public. Sometimes the worker may decide to blow the whistle as the matter complained of may have an effect on the worker himself, his employment rights and or health.
What is a “Qualifying disclosure?”
A qualifying disclosure is a disclosure of information where the worker reasonably holds the belief in the public interest that the following may happen, has happened or is likely to happen in future.
To be covered by whistleblowing law, a worker who makes a whistleblowing disclosure must reasonably believe that (1) they are acting in the public interest (this means that personal grievances and complaints are not usually covered by whistleblowing law) and (2) the disclosure tends to show past, present or likely future wrongdoing falling into one or more of the following categories:
A criminal offence (this may include, financial impropriety such as fraud);
the breach of a legal obligation eg a miscarriage of justice;
a danger to the health and safety of any person;
endangering of someone’s health and safety; and
a deliberate attempt to conceal any wrongdoing in the above categories.
The Act provides that the worker should first make the disclosure to their employer. However, if they are unable to do so or feel unable to do so the disclosure should be made to a prescribed person in the employer’s whistleblowing procedure. Please see the list of prescribed persons in the Government’s website at www.gov.uk.
Statutory protection for Whistle-blowers
Whistleblowing can have a serious effect on the whistle-blower and may result in a whistle-blower losing their employment.
The government has introduced protection for whistle-blower. To be protected under the Act the worker must show that:
he/she made a disclosure;
he/she followed the correct process for disclosure; and
he/she suffered a detriment or was dismissed for making the disclosure.
If the employee follows the correct process and suffers any detriment eg is unfairly selected for redundancy or dismissed because of their whistleblowing. the employee will be able to claim unfair dismissal at the Employment Tribunal.
A whistleblowing dismissal is an automatic unfair dismissal. An employee dismissed for whistleblowing does not need to have two (2) years continuous service with an employer to bring an unfair dismissal claim in the Employment Tribunal for a whistleblowing dismissal. Further the compensation for whistleblowing is unlimited as the Tribunal can award unlimited compensation for financial loss and injury to feelings in whistleblowing cases. This is similar to the awards in discrimination claims.
A whistleblowing disclosure must be made in good faith. If the Tribunal thinks the disclosure was made in bad faith the Tribunal has the power to reduce compensation awarded to the employee by up to 25%.
We recommend that employers have a whistleblowing policy and clear procedures for dealing with whistleblowing. Your whistleblowing policy should be clear and easy to understand.
By having clear policies and procedures for dealing with whistleblowing, a business is demonstrating that it welcomes information being brought to the attention of management and that it will investigate staff concerns that are brought to its attention.
Tips for your whistleblowing policy
Your whistleblowing policy should:
Explain what whistleblowing is.
Explain your business’s procedures for handling whistleblowing.;
Show a commitment to training workers at all levels of the business to understand what whistleblowing is and your business’s whistleblowing policy and procedures;
Demonstrate a commitment by the business to treat all disclosures fairly and consistently.
Demonstrate a commitment to maintain the confidentiality of the whistle blower subject to any legal requirements.
Inform workers that any so-called ‘gagging clauses’ in settlement agreements do not prevent workers from making disclosures in the public interest.
explain the difficulties in dealing with anonymous whistleblowers and reassure workers that whistleblowers will be treated fairly and will not be victimised.
Explain that anonymous whistleblowers will not ordinarily be able to receive feedback and that any action taken to look into a disclosure could be limited.
Emphasise that victimisation of a whistle blower is not acceptable and any cases victimisation will be taken seriously and dealt with appropriately.
Set out a time frame for handling any disclosures raised.
Specialist Whistleblowing Solicitors
How Pure Business Law can help?
If you believe that you have a potential whistleblowing claim or you are thinking about blowing the whistle, please contact us today by telephone on 01234 938089 or by email at firstname.lastname@example.org. We are specialist Employment Law Solicitors based in Bedford and operate nationally.
Please also note that anything you say to us will remain in the strictest confidence. This means that even if you do not pursue with your claim or blow the whistle, everything you say to us will remain confidential. We as solicitors are bound by a duty of confidentiality. All our employees are under the same obligation.
If you would like to discuss anything raised in this article, please contact us and speak with one of our solicitors. Pure Business Law is regulated by the Solicitors Regulation Authority and is a licensed member of the Law Society of England & Wales.