Employers should want whistleblowers in their businesses. Some may consider this statement to be controversial because the term ‘whistleblowing’ attracts some negative press. However, there are few employers who would not want their employees or workers to tell them about important, and potentially damaging, practices or matters of concern going on in their organisation.
However, whistleblowing can be difficult to manage, and employers do not want whistleblowers who do not act responsibly with their disclosures. Therefore, the key to this is to have policies in place so employees and workers know how they can report such matters and what procedure will be followed.
Failure to deal with whistleblowing can have wide implications, especially if the matter is reported to external bodies or the media. Additionally, any action taken against a whistleblower can result in Employment Tribunal claims which attract high levels of compensation.
Employers should note that the legal protection around whistleblowing also extends beyond employees to include home workers, non-employees undergoing training or work experience as part of a training course, self-employed doctors, dentists, ophthalmologists and pharmacists in the National Health Service, agency workers and police officers.
When a whistleblower makes a qualifying “protected disclosure” they become protected in law, under the Public Interest Disclosure Act 1998. They are protected from dismissal and from being subjected to any detriment on the ground that they have made a protected disclosure. The provisions relating to detriment include former employees or workers. So, for example, providing a bad reference after the whistleblower has left can still give them a claim for detriment. There is also no need for a worker to have any continuous period of service with an employer to be able to make a claim.
A protected disclosure is information which, in the reasonable belief of the worker, shows that one of following has occurred, is occurring, or is likely to occur:
- A criminal offence.
- A breach of any legal obligation.
- A 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.
It does not matter for this purpose whether the employee’s belief is correct or not, just that it is reasonable, and genuinely held.
In order to qualify for protection, the disclosure must relate to the above and also be made in good faith i.e. if the disclosure is motivated by malice or personal gain then it will not qualify for protection. Disclosures must also be made to the right people and generally this means the employee should make the disclosure to their employer (or a responsible person) internally. However, the legislation does permit external disclosure to certain prescribed persons (such as a statutory regulator or a government minister) in more limited circumstances.
It is worth noting that although the legislation is called the Public Interest Disclosure Act, there is not necessarily a requirement for the disclosure to be in the public interest in order to be protected. In the controversial case of Parkins v Sodexho (2002) it was found that a threatened breach of the employee’s own contract of employment was enough to constitute breach of a ‘legal obligation’ and therefore give whistleblower protection. Many people believe this has led to an increased number of spurious whistleblowing claims, where employees make disclosures in order to protect themselves or give themselves a potential cause of action. The Government has indicated that it wishes to try and close this “loophole” but as yet we are not aware of any date for implementation of this change.
Since April 2010, Employment Tribunals can send details of whistleblowing claims direct to a relevant regulator where the claiming worker or employee has given their express consent. The idea is that the system will ensure that issues are drawn to the attention of the relevant bodies.
In regard to compensation, the usual remedies for unfair dismissal apply in whistleblowing cases. However, crucially the usual upper limit on unfair dismissal compensation does not apply to whistleblowing cases. Compensation for injury to feelings (which is not awarded in unfair dismissal cases) can be claimed for any detriment up to the point of dismissal. In addition, it is not unusual for Tribunals to also find that the employee has been stigmatised in some way on the job market because of their disclosure. This can result in more substantial awards being made for future loss of earnings, on the basis that the employee may not realistically be able to find future employment in their industry, or at a similar level of seniority or remuneration.
If you need assistance with a whistleblowing policy, or for advice on any specific situation then please contact the Pure Employment Law team on 01243 836840 or [email protected] .