A guide to whistleblowing

There are a number of high-profile cases involving workers within organisations who have “blown the whistle” on their employer: exposing practices and decisions which they believed were serious and could amount to what is termed a “qualifying disclosure”.

Whistleblowing is more formally known as 'making a disclosure in the public interest'.

Whistleblowing: a big step to take

Whistleblowing is, for any individual, a big step to take and the consequences can be far reaching.

Margaret Haywood helped the BBC uncover gross neglect of vulnerable and elderly patients at a Brighton hospital and she wrote “it broke my heart that the [Brighton hospital] carers were working still and I had my livelihood taken away from me.”

This article does not explore the whistleblower’s message and implications for employers, but we do recommend further reading of important public interest disclosures as preparation for reviewing how your own organisation would respond to a whistleblower.

What is whistleblowing?

To be classed as whistleblowing, the information being disclosed by someone must be in the public interest, serious and not merely a trivial matter.

The right of an individual to make a disclosure is contained in the Public Interest Disclosure Act (PIDA) 1998. The intention of the act is to protect whistleblowers from victimisation or from being dismissed.

What disclosures amount to whistleblowing?

Qualifying disclosures are disclosures of information where the worker reasonably believes (and it is in the public interest) that one or more of the following matters is either happening, has taken place, or is likely to happen in the future:

• A criminal offence
• The breach of a legal obligation
• A miscarriage of justice
• A danger to the health and safety of any individual
• Damage to the environment
• Deliberate attempt to conceal any of the above

For further information on whistleblowing cases visit the ACAS website here.

In most organisations, there will be a staff grievance procedure which provides a mechanism for employees to raise issues of personal concern to them. For example, this could be a breach of their contract of employment or unfair treatment towards them by a manger.

In the public sector, employers are obliged to have a whistleblowing procedure. For example, in the maintained schools’ sector, where whistleblowing procedures protect staff members who report colleagues they believe are doing something wrong, illegal, or who are neglecting their duties.

A disclosure of information by a whistleblower normally relates to something that may not personally impact on the them, but will impact on either the employer or a third party that in their opinion was against the PIDA. These are also cases where the whistleblower believes they need to protect their employment rights and need to seek the protection of the law in whistleblowing.

The route the worker should take is to make the disclosure to their employer first. If they feel unable to do so, their whistleblowing disclosure should be made to a prescribed person, named in the employer’s whistleblowing procedure.

Guidance is available from GOV.UK - Blowing the whistle: list of prescribed people and bodies.

Protection for Whistleblowers

Under the Employment Rights Act 1996, from the first day of their employment, if a worker makes a disclosure they will receive protection from being dismissed or victimised because of their whistleblowing.

A whistleblowing dismissal is automatically unfair and an employee does not need two years’ continuity of service to bring such a claim in the employment tribunal. Compensation for whistleblowing is also uncapped. In relation to victimisation of a whistleblower, a tribunal can award compensation for financial loss and injury to feelings (in the same way as discrimination claims).

Whistleblowers are able to claim unfair dismissal if they are dismissed or victimised for ‘blowing the whistle’. A whistleblower’s dismissal (or selection for redundancy) is automatically considered 'unfair' if it is wholly or mainly for making a protected disclosure.

Bad faith disclosures

The information that whistleblowers disclose needs to meet the criteria pointed out earlier in this article. Whether an individual disclosure meets those criteria will always be a question of fact to be determined by the Employment tribunal.

A worker will have to show three things to claim PIDA protection:

1. that he or she made a disclosure
2. that they followed the correct disclosure procedure
3. that they were dismissed or suffered a detriment as a result of making the disclosure.

From 25th June 2013, if a case goes to a tribunal and the tribunal thinks the disclosure was made in bad faith, it will have the power to reduce compensation by up to 25%.

Whistleblowing: In conclusion

Whistleblowing cases can be very time consuming and costly.

If you are an employer, reviewing your procedure for making a disclosure in the public interest is a must. However, more importantly is the need to provide mechanisms to receive feedback from service users and workers on a continuous basis, which may just flag up any aspects of the organisation that require further scrutiny avoiding the need for whistleblowing.

If you are an employee, the good news is that the law is there to protect you if you believe you have a qualifying disclosure and you genuinely believe that the employer would not respond appropriately unless you made a disclosure under the PIDA.

For more information on whistleblowing and protected disclosures, contact Julie Davis here.