An employer’s guide to whistleblowing
Natalie Ruane gives an insight in to whistleblowing claims, how to deal with them and how to stop them arising.
Employers are often caught unaware by whistleblowing claims brought by employees and workers, either claiming that they have been dismissed or treated poorly because they ‘blew the whistle’. Such complaints can cause concern for employers, since they can be brought by any worker, regardless of length of service or status. The situation is not helped by the fairly complex law governing these complaints and the fact that the value of a successful claim can be high (as there is no cap on compensation).
This guide gives some insight into what the complainant has to show in order to establish a whistleblowing claim, some pointers for employers as to how best to deal with such claims, and more importantly, steps that can be taken to stop them arising in the first place.
Whistleblowing refers to the act of reporting or exposing suspected wrong doing, either within an organisation to a member of management or other senior postholder, or externally, for example to a regulator, local authority, or the press.
Protection against detriment
Sections 43A to 43L of the Employment Rights Act 1996 protect workers from being subjected to any detriment because they have made a “protected disclosure”. Detriment can include threats of disciplinary action, unfair treatment, loss of work or pay, or negative impact in relation to career prospects as a result of the employee making a protected disclosure.
An important point to note is that the employer is vicariously liable for any detriment imposed on a whistleblowing employee by one of their other workers. The employer will have a defence however, if it can demonstrate that it took all reasonable steps to prevent the detrimental treatment. In order to help demonstrate those reasonable steps, it is worthwhile having an actively implemented whistleblowing policy in place which is readily accessible to employees (see below).
Protection against unfair dismissal
Section 103A of the Employment Rights Act 1996 protects employees from dismissal where the principal reason for that dismissal is making a protected disclosure.
The detail of the protection provided to employees was introduced by the Public Interest Disclosure Act 1998.
Who is protected?
Workers as well as employees: This means that any individual who has entered into work can bring a claim, regardless of whether or not they are directly employed by the company in question. This means that protection extends to agency workers, freelance workers, seconded workers, home workers, trainees and casual workers.
Workers who have less than 2 years’ service: usually employees need at least 2 years’ service to bring an unfair dismissal claim. However, if the principle reason for the dismissal is whistleblowing, workers can still pursue a claim for unfair dismissal in the Employment Tribunal regardless of how long they have worked for an employer.
What is a protected disclosure?
Employees and workers may claim that they have made a protected disclosure for the purposes of establishing a whistleblowing claim. However, the definition of protected disclosure is extremely specific and therefore, if the disclosure does not fall into any of the following categories, it will not be protected by whistleblowing legislation. The following criteria must be met:
a) The worker must have disclosed information which they reasonably believe shows that one of the following has occurred, is occurring or is likely to occur:
- Criminal offence
- Breach of any legal obligation
- Miscarriage of justice
- Danger to the health and safety of any individual
- Damage to the environment
- The deliberate concealing of information about any of the above.
b) The worker must reasonably believe that the disclosure is “in the public interest”. While it is not necessary for the worker to show that the disclosure is of interest to the public as a whole to satisfy the public interest test (a relatively small group may be sufficient), the test won’t be satisfied if the worker is simply reporting a breach of their own employment contract, unless they can show that there are wider public interest implications.
c) The disclosure must be either received internally by the employer or externally by one of the “prescribed persons” approved by Parliament.
Prescribed persons include:
- The Health and Safety Executive
- The Office of Fair Trading
- The Charity Commission
- Members of Parliament
- Industry Regulators.
d) Where the disclosure is made externally, the worker must believe that the information is substantially true and concerns a matter within the remit of the Prescribed Person. There is no need to tell the employer first, although the legislation encourages disclosure to the employer as the primary method of whistleblowing.
If the above requirements are not met, then there will be no whistleblowing claim and the disclosure will not attract the protection from dismissal or detriment outlined above.
To establish the claim, it is not enough to have made a protected disclosure; there must be the causal link between the detrimental treatment and/ or dismissal and the making of the protected disclosure.
Advice for Employers
1. Take a measured approach in assessing the complaint, considering the key criteria above, before deciding that it is indeed a genuine protected disclosure which should trigger action under the company’s whistleblowing policy. If you are unsure, it is safest to get a professional opinion as to whether the complaint might meet the statutory definition.
2. Have a clear and understandable whistleblowing policy which is actively implemented and easily accessible for employees to help them understand the definition of whistleblowing and protected disclosures. This will ensure that:
- workers are aware of the key criteria and deter them from bringing complaints where these criteria have not been met; and
- where there is a genuine whistleblowing claim, there is certainty for both the employee and the employer as to the steps which need to be taken in order to address the complaint in a practical and timely manner.
3. Provide training to management in relation to the whistleblowing policy. Given the complexity of these type of complaints, the fact that they apply across the board (not only to employees but to all workers within the business), and the level of risk (i.e. uncapped claims which are not subject to a service requirement), it is prudent to ensure that managers are informed in respect of dealing with whistleblowing complaints. Importantly, it is key that managers are aware of the risk of a claim of unfair detriment if the complainant is treated any differently as a result of making a protected disclosure.
4. Investigate complaints as promptly as possible and ensure a transparent investigatory process. The complainant should be kept informed throughout the process as to the progress being made and timeframes for resolution. Failure to address the matter promptly or provide adequate information as to how the matter is progressing may prompt the whistle-blower to make an external disclosure.
5. Don’t rely on a confidentiality clause in the contract of employment to deter an external disclosure. A confidentiality clause in the worker’s contract will not be enforceable against a protected disclosure. Any effort to try and enforce a breach of confidentiality where the alleged breach meets the criteria of protected disclosure could amount to an unlawful detriment and expose the employer to the risk of a claim.
If the employee was to take things further and issue a claim in the Employment Tribunal, they have 3 months from the date of the detriment or dismissal to issue the complaint.
If you have any questions in relation to whistleblowing or protected disclosures, or require any assistance in putting together a whistleblowing policy, please contact Natalie Ruane at Burnetts on 01228 552220 or on firstname.lastname@example.org
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.