A Guide to Whistleblowing
Whistleblowing has been very much in the news over the last few weeks and a recent Employment Appeal Tribunal decided that a disclosure of information after employment ends can be protected disclosure under the whistleblowing provisions of the Employment Rights Act 1996.
The case confirms that a qualifying disclosure can be protected under whistleblowing law, whether it was made
- During employment with the respondent employer
- During employment with a previous employer
- After employment with the respondent employer has terminated
- Before the whistleblowing legislation came into force.
This checklist outlines the protection given to whistleblowers at work under UK law.
What protection does the law give to whistleblowers?
There is no financial cap on compensation in whistleblowing claims, and no requirement for a minimum period of service. Two levels of protection exist for whistleblowers:
• Unfair dismissal. Dismissing an employee will be automatically unfair if the reason, or main reason, is that they have made a “protected disclosure”.
• Unlawful detriment. Workers are protected from being subject to any detriment on the grounds that they have made a “protected disclosure”. A detriment includes:
o disciplinary action;
o loss of work or pay; or
o damage to career prospects.
Who is a worker?
The definition of a “worker” is wide and includes:
• Agency workers.
• Freelance workers.
• Seconded workers.
When is a disclosure protected?
The information disclosed must, in the reasonable belief of the worker, tend to show that one of the following has taken place, is taking place or is likely to take place:
• A criminal offence.
• Breach of any legal obligation.
• Miscarriage of justice.
• Danger to the health and safety of an individual.
• Damage to the environment.
• The deliberate concealing of information about any of the above.
If the whistleblower is acting in good faith, a disclosure to a business will be a protected disclosure.
• Responsible third parties. If a worker reasonably believes a third party (for example, a client or supplier) is responsible for the wrongdoing, they can report if to that third party in good faith, without informing the business.
• Prescribed persons. There are a number of organisations that a worker can make a disclosure to in good faith, provided they believe the information is substantially true and concerns a matter within that person’s area of responsibility. They include:
o HM Revenue & Customs;
o the Office of Fair Trading; and
o the Health and Safety Executive.
• Legal advisers. Workers are entitled to disclose matters to their legal adviser while obtaining advice.
• Wider disclosure. Disclosure to anyone else is only protected if the worker believes the information is substantially true and acts in good faith and not for gain. Unless the matter is “exceptionally serious”, they must have already disclosed it to the business or a prescribed person, or believe that, if they do, evidence would be destroyed or they would suffer reprisals.
Why is protection of whistleblowers important?
Internal risk control
Businesses have an interest in uncovering wrongdoing or dangerous practices within their organisation. A business is likely to want to manage what information (if any) is spread to the outside world. Encouraging the reporting of these types of issues through internal channels may help avoid:
• Serious accidents.
• Regulatory breaches.
Whistleblowing cases can involve significant management time and legal costs, which are not usually recoverable.
Reputational damage and staff morale
An external disclosure of suspected malpractice, especially to the media, can lead to negative publicity for the business and damage staff morale. Any claim by a whistleblower who believes they have suffered reprisals is likely to have a similar effect.
Avoiding criminal liability
A business will be guilty of failing to prevent bribery if a person associated with it (for example, an employee) bribes another person with the intention of obtaining or retaining business or a business advantage. A business will have a defence if it can show that the business had "adequate procedures" in place to prevent bribery. The government has published guidance indicating that this would include having effective whistleblowing procedures in place that encourage the reporting of bribery.
Practical steps to help reduce business risk
• Implement a whistleblowing policy that enables staff to confidentially report concerns about:
o unethical; or
o otherwise unacceptable conduct.
Ensure that it enables the worker to bypass the level of management where the problem exists.
• Publicise the policy internally and train any managers on it. Make it clear that victimisation of a whistleblower will lead to disciplinary action.
• Investigate disclosures promptly and keep the whistleblower informed of progress where possible. A lack of contact with the whistleblower may lead them to make an external disclosure.
• Do not rely on confidentiality clauses to prevent external disclosures, as they are unenforceable if the disclosure is protected. Taking action against a whistleblower for breach of confidence may amount to an unlawful detriment.
For further information or advice on whistleblowing, contact Burnetts’ employment team on 01228 552222 or email firstname.lastname@example.org