The shocking news about what went on at the Orchid View care home in Copthorne, West Sussex, was brought to light by administrator Lisa Martin. Ms Martin called the police after she witnessed numerous serious failures being covered up or ignored by the care home’s management.
We look at what employers should do to encourage employees to raise concerns internally, what protections whistleblowers have in law, and what practical steps employers should take to ensure whistleblowing is dealt with appropriately within their organisation.
What makes someone a whistleblower in law?
In order to be protected as a whistleblower under the Public Interest Disclosure Act, the person must make a disclosure. That disclosure must be that they have a reasonable belief that any of the following things has happened, is happening or may happen in future:
- A criminal offence
- A breach of a legal obligation
- A miscarriage of justice
- Danger to health and safety
- Damage to the environment
Or deliberate concealment of information relating to any of the above.
In the Orchid View case Lisa Martin satisfied several of the above requirements – but one is enough to qualify as a protected disclosure. It is worth noting that there is no need for the whistleblower to be able to prove that (for example) a criminal offence has taken place, they only need a reasonable belief that it is the case.
Since 25 June 2013 a disclosure will only be protected if it is in the ‘public interest’. There is no case law yet on what this means, but we expect that the Tribunals would interpret this quite widely.
There was previously a requirement for the whistleblower to act in ‘good faith’ but that has now been removed.
Generally speaking, disclosures should be made to the employer in the first instance, although in some situations disclosure can be made to other specified persons such as regulatory bodies. However, if the whistleblower has a reasonable belief that they may be subject to reprisals for raising matters internally, they may be able to raise matters more widely, such as to the police as happened in the Orchid View case.
What legal protection do whistleblowers have?
Unfortunately Lisa Martin does not appear to have benefited from the protection given to whistleblowers – this may be because she was employed by the now defunct Southern Cross.
If an employee is dismissed (or constructively dismissed) and the reason for their dismissal is that they have made a protected disclosure, the dismissal is automatically unfair. There is no minimum period of service required to bring the claim, and there is no limit on the compensation. Compensation can include an award for injury to feelings as well as personal injury.
The protection goes wider than just for employees, as workers are also protected against being subjected to a detriment on the grounds that they have made a protected disclosure. The definition of ‘worker’ here is even wider than the usual definition and can include agency workers and those undergoing training or work experience as part of a course.
One of the significant changes made to whistleblowing law this year (the change took effect from 25 June 2013) was that employers are now vicariously liable where one of their employees subjects the whistleblower to a detriment. Our previous article on vicarious liability (in other contexts) can be found here. There is a defence if an employer can show that they took reasonable steps to prevent the whistleblower from being subjected to a detriment. Although the law is new and has not been tested yet, equivalent rules in discrimination law suggest that the kind of thing an employer would need to do in order to benefit from this defence would be:
- Include in your whistleblowing policy reference to the fact that whistleblowers should not be victimised
- Train your managers (and, where appropriate, your staff) to ensure they are aware of this – we can help you do this (see below)
- Ensure that it is made clear that doing anything to victimise a whistleblower or subject them to a detriment will be dealt with as a disciplinary matter
- Ensure that you communicate with any whistleblowers to ensure that they feel able to report any alleged victimisation or detriment
The other thing that is worth pointing out to your managers is that the change in the law also means that individuals who victimise whistleblowers or subject them to a detriment can be personally liable to compensate the whistleblower. We find that mentioning this can be useful to make managers sit up and take notice!
Why is it important to protect whistleblowers within your organisation?
As well as the fact they have protection in law, the main reason is to encourage people to report issues to you so that you can address them. These could be minor issues, but if you make it easy for people to raise concerns with a clear and accessible process, you will encourage people to uncover wrongdoing or dangerous practices as soon as possible. Clearly the culture at Orchid View did not allow for this to happen, which became part of the problem.
By encouraging internal reporting (and, of course, acting on the issues that are reported to you) you are reducing the risk that people will ‘blow the whistle’ externally, which could be far more damaging to your organisation’s reputation. It is also important in relation to the Bribery Act 2010 that employers have whistleblowing procedures so as to show that they have measures in place for people to disclose if they believe that bribery may be taking place.
What should we do?
It is certainly a good idea to have a whistleblowing policy – we can help with this. If you have one already, then it may need updating to reflect the new law, and again we can help with that too!
As with all policies it is important that staff are made aware of it, and that managers are given training to understand their role in dealing with issues under the policy. We have experience in manager training on whistleblowing as well as many other areas of employment law, so please do contact us if we can help.
If any disclosures are made, it is important that they are investigated promptly and thoroughly and that where possible, the whistleblower is kept informed about the progress of the investigation. All too often the whistleblower will feel that things are taking too long and their concerns aren’t being taken seriously, which might cause matters to escalate.
We can help with creating or updating a whistleblowing policy, as well as advising on any particular situation. Please contact any member of the Pure Employment Law team for assistance (01243 836840 or [email protected]).