Whistleblowing arises when a worker provides certain types of information which have come to their attention, usually to an employer or a regulator, to raise a concern about serious wrongdoing that affects others. The disclosure may be about the alleged wrongful conduct of the employer, a colleague, a client, or any other third party.
Background
The whistleblowing legislation was introduced after a series of financial scandals and health and safety-related accidents in the 1980s and 1990s. In many cases, these could have been prevented as staff were aware of serious irregularities within the organisations in which they worked but did not speak out for fear of the consequences.
The Public Interest Disclosure Act 1998 (PIDA), which inserted new sections into the Employment Rights Act 1996, was introduced to encourage the disclosure of information that is in the public interest such as illegal, dangerous or corrupt practices. If an employee’s contract was terminated due to a ‘protected disclosure’ under the PIDA, they can claim unfair dismissal. Additionally, they are protected from any form of reprisal, mistreatment or any other detriment that may result after raising a concern, such as not being considered for a promotion or being denied training opportunities.
Whistleblowing has attracted a lot of high-profile global media attention in recent years and has become an increasingly important part of the employment law landscape, particularly in the financial services and health sectors. As a result, whistleblowing is high on the agenda for many employers.
In this feature, we look at what constitutes a ‘protected disclosure,’ how employers should deal with them and why adopting a whistleblowing policy can be helpful. In Part 2, we focus on the legal protection offered to whistleblowers and what could happen if a whistleblower feels that they have been unfairly treated.
Who Is Protected By The Whistleblowing Policy?
The whistleblowing legislation protects employees, ex-employees and most workers, and Section 4.3K of the ERA extends protection under PIDA to many different types of employment relationships and working arrangements. This includes many contractors, trainees, certain NHS practitioners, nurses and midwives in training and agency staff. It currently excludes volunteers, people who are genuinely self-employed (other than in the NHS), most job applicants, and non-executive directives. For those working as police officers or the Crown, special provisions apply.
Unlike other statutory employment rights, protection under PIDA applies from the first day of employment and does not require the employee or worker to have two years of service before they can bring a legal claim under PIDA.
When Is A Worker Protected Under The Legislation?
Under PIDA, a worker will only be protected from suffering a detriment or from being dismissed if the disclosure is a qualifying disclosure that is made to an appropriate or prescribed person or body. The worker must have made a disclosure of information, which can be made in writing or verbally, and can take the form of an email, letter, telephone call or other conversation. The worker will need to demonstrate that they made a disclosure which they reasonably believed was ‘in the public interest’. Furthermore, the disclosure must relate to certain specified types of malpractice (see below).
To be a ‘qualifying’ disclosure under the ERA, the worker must have a reasonable belief that one or more of the six specific types of failures has taken place, is taking place or is likely to take place (S.43B(1) ERA) namely;
- a criminal offence
- a failure to comply with a legal obligation
- a miscarriage of justice
- endangered health or safety
- damage to the environment, or
- concealment of information showing any of the above
Caselaw has established that it is not necessary for the information disclosed to actually be true for it to qualify as a protected disclosure. As long as they can show they had some reasonable basis or grounding for believing there has been some wrongdoing, that should be sufficient for the whistleblower to demonstrate reasonable belief.
The malpractice does not need to be committed by the employer – it can relate to the action of third parties. For example, an allegation that the employer’s outsourced caterers are selling out-of-date food in the staff canteen breaching health and safety laws could amount to a protected disclosure. It can also involve conduct that took place outside the UK.
A complaint will not usually count as a qualifying disclosure where it can be characterised as purely a personal grievance, rather than a public concern which impacts other people, for example, bullying or discrimination of the complainant, as the law offers protection for workers against this in other ways. It is possible that there is another concern affecting a worker from raising a complaint. For example, if the workplace has a culture of discrimination and bullying, this would make the concern public interest and, consequently, a qualifying disclosure. According to case law, whether these sorts of disclosures can also be reasonably believed to be in the public interest will depend upon:
- the numbers in the affected group
- the nature of the affected interest and how much they are affected.
- the nature of the alleged malpractice
- the identity of the alleged wrongdoer.
If a worker making the disclosure commits an offence by making it, or the disclosure would be in breach of the principle of legal professional privilege, it will not be a qualifying disclosure. Similarly, if the disclosure is made unreasonably; for example, in an aggressive manner, or if it is made to the wrong party, such as a competitor, an employer may still be able to fairly dismiss the worker for acting unreasonably.
To Whom Should The Disclosure Be Made?
To qualify for protection, a disclosure must be made to an appropriate party in the right way. The PIDA protects whistleblowers who make disclosures to;
- their employer, either directly or through an internal company procedure or
- someone who they reasonably believe is the sole/main party responsible for the failure. An example of this might be a worker in an auditing firm who raises a concern with a client.
Whistleblowing Policies
The law is drafted to encourage workers to make the disclosure internally where possible. While there is generally no legal requirement for an organisation to have a whistleblowing policy, it is seen as best practice and there are a number of benefits in having an effective whistleblowing procedure, which is explained to all staff, either as part of the induction process or as a bespoke training exercise.
A clear whistleblowing policy will actively encourage an open culture where wrongdoing can be addressed internally quickly and potentially before any regulatory action or damage to reputation. It also sends a positive message to employees and other stakeholders that the business is run ethically and takes its obligations seriously as well as educating staff and management and reinforcing the standards expected in their organisation.
Lastly, having a defined procedure also reduces the risk of an employee making a protected disclosure without it coming to the attention of a suitably trained manager who realises the seriousness of the situation, and who can make sure allegations are investigated appropriately and that proper steps are taken to limit the potential damage to the employer.
How To Deal With A Disclosure
If an employer receives a protected disclosure, it needs to be treated seriously and dealt with promptly. It will be necessary to thoroughly investigate the disclosure and interview the person who made it, asking them to give a written witness statement setting out the nature and details of their disclosure and the basis for it. They should be allowed to be accompanied by a trade union representative or colleague at any meeting set up to discuss the disclosure and should be offered support.
It is crucial to provide reassurance to the whistleblower that this disclosure will not affect their role.
It is also necessary to keep the whistleblower informed of the outcome of the investigation when it is completed. Even if the complaint is not upheld, the worker should not face retaliation or be penalised for making a protected disclosure, including from colleagues. If the allegation is well-founded, then appropriate action should be taken, for example, taking internal disciplinary action against the relevant members of staff or reporting the matter to an appropriate government department.
Disclosures To Someone Other Than Their Employer
Ideally, workers will feel able to disclose to their employer and having an effective whistleblowing policy will help to encourage this. However, there may be circumstances where they may feel unable to. The PIDA sets out a few ways in which a worker may make an external disclosure without losing their rights under whistleblowing law.
A disclosure can be made externally to a ‘prescribed person,’ such as a regulatory body or person within a regulatory body listed in Public Interest Disclosure (Prescribed Persons) Order 2014, for example, the Health and Safety Executive or the Director of the Serious Fraud Office. The criteria that applies to all ‘protected disclosures’ will still need to be satisfied. The worker must, however, also reasonably believe that the wrongdoing falls within the remit of the regulatory body and that the allegations are substantially true.
Where the disclosure is made externally to other third parties, such as the shareholders of the company, the media or the police, a more rigorous criterion applies. The person in question must abide by the requirements above. However, disclosure to the third party must be reasonable and not made by the worker for personal gain. The ‘reasonableness’ requirement may be difficult to satisfy if the worker has not approached the employer first and given it the opportunity to rectify the problem unless there are extenuating circumstances.
How We Can Help
Whistleblowing is a complex legal area and here at Witan Solicitors, our experienced employment law team can help you with all issues relating to whistleblowing, including identifying when a disclosure crosses the remit into a protected disclosure and how to investigate it. We can also assist you with the development of an effective whistleblowing policy to reduce business risk.
Get in touch with our employment solicitors in Northampton, Birmingham and London at info@witansolicitors.co.uk or fill in our contact form.
