2020 has become know as the ‘year of the whistleblower’ in certain business circles. During the pandemic we have seen a huge increase in whistleblowing matters. Not really surprising given the rise in issues concerning mental health, health & safety and employment matters generally.
So what exactly is whistleblowing?
Whistleblowing is one of the claims an employee may make when claiming their dismissal is unfair. Unlike ordinary dismissal where two years’ service is required to make a claim, if an employee is dismissed following a protected or whistleblowing disclosure the dismissal is potentially automatically unfair even if it is in the first days of employment.
If a worker has blown the whistle it’s not just dismissal that could lead to a claim, if they are treated to their detriment in other ways they may have a claim for compensation.
Below I explain, briefly (it may not seem brief!) the legal definition of whistleblowing to help identify when whistleblowing occurs and I have concluded with some key points to note.
How do we identify whistleblowing?
One of the most common responses from an employer when a worker (by worker I mean employees and workers) makes an allegation of whistleblowing is that it isn’t whistleblowing because the worker did not follow the employer’s whistleblowing policy – if only it were that simple…
It’s not necessary for a worker to follow a whistleblowing policy for whistleblowing to have occurred, indeed sometimes the worker making the disclosure does not know that what they have raised is a whistleblowing concern. So, if that’s the case how do we spot whistleblowing?
In law, what’s colloquially known as whistleblowing is a protected disclosure.
A protected disclosure occurs when there is a
- disclosure of information;
- which the employee or worker reasonably believes
- is made in the public interest; and
- tends to show one or more of a range of wrongdoings which include criminal offences, failing to comply with legal obligations, miscarriages of justice, endangerment of health or safety, damage to the environment, or deliberately concealing any of these things;
- is made in one of the protected ways.
What does that mean?
Disclosure of information – the worker must disclose some information. It can be information that is already known but it’s not a general moan. For example, in the context of a garage an allegation that ‘no-one here knows what they are doing’ is unlikely to amount to information in contrast with a comment that ‘the mechanics failed to properly repair the brakes on two vehicles last week’.
The worker’s belief
Public interest – the worker must believe they are making the disclosure in the public interest – in the garage example the public interest would be there not being a vehicle with faulty brakes on the road.
Tending to show wrongdoings
The information disclosed must also show one of the types of wrongdoing identified in the legislation. This may be a criminal offence, breach of a legal obligations, a miscarriage of justice, endangering the health or safety of an individual, damage to the environment, or deliberately concealing any of these things.
In the garage example, faults on a vehicle would satisfy the test in several ways – if the vehicles were unroadworthy that could mean a criminal offence is likely to be committed, certainly the vehicles may not comply with legal obligations and the health and safety of an individual (the driver or other road users) could be endangered.
Even if the worker is wrong in the belief about the information disclosed as long as that belief was reasonably held they would still meet the test. Back to the garage example, if the brakes were actually repaired adequately but if the worker reasonably concluded they were not, there may still have been a protected disclosure.
Was the disclosure protected?
The disclosure is protected if it is made to the worker’s employer or in some circumstances to others provided certain conditions are met. This article concentrates on circumstances when disclosures are made to the employer.
Usually, you would expect a disclosure made to a person senior to the worker with some form of authority over the worker to be a protected disclosure.
- Take care not to dismiss all complaints as moaning or negativity, such a response can create risks even where the complainant is a serial complainer;
- Make sure all managers and supervisors are aware of the potential of whistleblowing complaints and where complaints are made that they actively reference your whistleblowing policy;
- If dismissing an employee of less than two years, take care to understand the reasons for dismissal, if there are any suggestions of complaints, it may still be advisable to follow your normal capability or disciplinary policies, or an abbreviated version of those, so that the reasons for dismissal are clear;
- Where there is a whistleblowing claim, any protected conversation may still be disclosed in any subsequent tribunal claim.
It is a real challenge to create a culture of ethical decision-making and behaviour in any business. In the end – we are all human and nothing is ever simple. So whether you are an employer or employee; flexibility is the key – allowing for the unexpected while being prepared for it. As an employer you need to provide clear expectations, support, and processes so that your workplace can achieve that ethical culture. It is a bit like a game of football really. Without the referee blowing his whistle when rules are broken, there would be chaos and probably an awful lot of cheating! In the world of business, the whistleblower is that referee – reporting wrongdoing in the workplace to prevent the anarchy that might ensue.
For more information on your rights in relation to whistleblowing, get in touch today.
About the Author – Debbie Mactaggart
Debbie has over 30 years’ experience as a trusted advisor and a solicitor working in-house and at several large, commercial law firms. She spent 4 years as head of a commercial legal team. Debbie deals with commercial disputes and employment issues and has also acted for Claimants and Respondents on many whistleblowing claims. Her particular strengths include good relationships with her clients, empathy and people skills. She has experience of developing and delivering training for clients and lawyers covering complex legal issues in an accessible way.
To contact Debbie, please email Debbie.Mactaggart@haddletons.com