October 14, 2022
The workplace can be a difficult environment where a person is subject to behaviour, incidents or the receipt of information that concerns or worries them and is either dangerous or illegal. Having witnessed or experienced this, an employee can be anxious about what to do next. Of course the natural tendency is to report such an incident, but the employee can be concerned about the repercussions of doing so, in terms of their employment status and how the employer and fellow employees subsequently treat them. This area of employment law is known as ‘whistleblowing’ and how a whistle-blower is protected is critical in understanding how the process works.
What is whistleblowing?
Whistleblowing is defined as when a worker passes on information about a wrongdoing they have witnessed or experienced in the workplace. The complaint would normally be relating to something which is a criminal offence or the breach of a legal obligation. Common reasons for making a whistleblowing complaint are if an employee has witnessed or experienced acts of bribery, corruption or a deliberate health and safety breach in the workplace.
To qualify as a legitimate whistleblowing complaint, the wrongdoing must be seen to be in the public interest. In other words, raising the complaint will protect others from harm, such as other employees at the workplace, or the general public. This means that you can’t make a whistleblowing complaint which relates to a personal grievance such as bullying, harassment or discrimination, to you or another individual, ie. where you or the individual are the only person suffering from the wrongdoing. While this might be a legitimate grievance, this would normally be covered by an organisation’s grievance policy.
What is protected disclosure and why is it important?
The criteria for what constitutes a whistleblowing complaint is important, because people making a legitimate whistleblowing complaint can have their interests covered by protected disclosure. These are a set of provisions in the Employment Rights Act (ERA) 1996 which ensure that an employee making a whistleblowing complaint has a right:
- Not to be dismissed
- Not to be subject to any detriment by his/her employer – this can include being overlooked for promotion, overlooked for any training opportunities, being the
subject of spurious disciplinary investigations
This applies if the employee reasonably believes a serious wrongdoing in the workplace constitutes dangerous or illegal activity. If this satisfies all the statutory requirements under the ERA, the employee is protected from unfair treatment. If a complaint made by an employee does not qualify for protected disclosure then the employee would not have these legal protections. Therefore, it is important to understand how a complaint qualifies as a protected disclosure.
What is the criteria to qualify for protected disclosure?
A whistleblowing complaint has to be in the public interest, but it also has to be made to the appropriate or prescribed person or body. Who the appropriate people or bodies are should be explained in your organisation’s whistleblowing policy or an HR handbook. It is also important to understand that a whistleblowing complaint has to be made within three months of the wrongdoing taking place, or the last example of it if it was a series of wrongdoings.
The employee could be reporting a past (within three months) wrongdoing, a present wrongdoing or even the potential of a wrongdoing. But the complaint must be made in good faith and the employee must reasonably believe it to be true, ie. it is not a personal grievance and is in the public interest. Even if a complaint doesn’t turn out to be legitimate, an employee can qualify for protected disclosure if they can prove they had reasonable grounds for believing their complaint was substantially true and their belief was honestly held.
Critically, there are six types of relevant failure which a complaint must fall within to qualify for protected disclosure. These are:
- A criminal offence has, is, or is likely to be committed
- A person has, is, or is likely to fail to comply with a legal obligation to which they are subject
- A miscarriage of justice has, is or is likely to occur
- The health or safety of any individual has, is, or is likely to be endangered
- The environment has, is, or is likely to be damaged
- Information tending to show any matter falling within any one of the above has, is, or is likely to be deliberately concealed.
An employee would NOT qualify if the disclosure means the employee has themselves committed an offence by making it, if the information is subject to a legal professional privilege, or if the complaint is made to the media rather than the appropriate person or body.
Why employers are welcoming whistleblowing complaints
Having made a whistleblowing complaint, this should be kept confidential by an employer and the employee should be kept informed of progress with it, even if they have no involvement in the process thereafter.
More and more modern employers respond positively to whistleblowing, and encourage employees to come forward. It is important to promote an open and transparent culture and employees need to understand that in doing so an employer will respond appropriately to their concerns and with no fear of recriminations.
It is worth noting that an employee who is dismissed having made a protected disclosure does not need any qualifying service to pursue a claim at the Employment Tribunal. The dismissal will be automatically unfair if all conditions are met and losses are uncapped. In addition, an employee who suffers a detriment having made a protected disclosure can receive an injury to feelings award.
If you are concerned about whistleblowing as an employer or employee, you can speak to our employment law solicitors today.