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Whistleblowing | The law and best practice for employers
For employers, learning of potential wrongdoing being committed within your organisation can be incredibly unnerving.
The law gives certain statutory protections to workers who ‘blow the whistle’, which can make employers feel as though their hands are tied. However, there are a number of requirements that workers must satisfy before they qualify for this protection.
In this article, we explain what whistleblowing is (and isn’t), the laws that exist to protect whistleblowers, and how disclosures should (and shouldn’t) be dealt with.
What does the law say?
Whistleblowers are afforded certain legal protections that prevent them from being reprimanded, victimised or let go from their job for speaking out about malpractice. However, in order for these to apply, the person making the protected disclosure must:
- Be a worker. This covers employees, apprentices, trainees and agency workers. The rules are wide enough to cover both current and former workers, other than those who work/worked for the employer on a self-employed basis.
- Reasonably believe they are acting in the public interest. The test for this is not defined in law but essentially means that the disclosure must have an impact on other people and must not be a personal grievance.
- Have a reasonable belief that the information disclosed tends to demonstrate past, present or likely future wrongdoing of the following nature:
- A criminal offence
- A breach of legal obligation
- A risk to someone’s health and safety
- Miscarriages of justice
- Damage to the environment
- Someone covering up or concealing wrongdoings in relation to any of the above.
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What does 'reasonable belief in public interest' really mean?
A worker will only be protected under whistleblowing laws if the disclosure is made in the reasonable belief that it is in the public interest. This requirement exists in order to prevent situations where a worker’s complaint concerning their own contract or working conditions is made under the guise of whistleblowing. These individual complaints should be dealt with in line with the employer’s grievance procedure.
However, the line between whistleblowing disclosures and individual grievances is often blurred. This is largely due to the fact that the phrase ‘reasonable belief in the public interest’ is not defined in legislation, leaving Employment Tribunals to apply the public interest test without any definitive guidance as to its meaning.
In the recent case of Okwu v Rise Community Action, Miss Okwu (a charity worker) had her probation period extended for three months due to performance concerns. She then blew the whistle regarding a breach of Data Protection legislation. When her employment was terminated on performance grounds, she brought a claim for unfair dismissal, claiming that she was actually dismissed for blowing the whistle.
While an Employment Tribunal originally dismissed Miss Okwu’s claim on the basis of the public interest test, the Employment Appeal Tribunal disagreed with this decision. It stated that whether her disclosure had been in the public interest or not, the question was whether Miss Okwu had a reasonable belief that it was. Given the disclosure related to sensitive information, this would appear to be a fair judgement for Miss Okwu to make, and the case was therefore referred back to the Tribunal for reconsideration.
Who should workers make a disclosure to?
Normally, if a worker has information regarding wrongdoing in any of the categories mentioned above, a disclosure should first be made internally to their employer.
If they don’t feel able to approach their employer directly, they may be able to make the disclosure to a prescribed person or body. This will depend on the nature of the business; for example, if the worker is blowing the whistle due to witnessing malpractice in a care home, they may make the disclosure to Safeguarding or the Care Quality Commission (CQC).
If a worker decides to bypass informing their employer and go straight to the press, it is likely that they will lose their legal protections.
How should employers respond to whistleblowing reports?
If a worker discloses dishonest, illegal or dangerous practices, or deliberate concealment of evidence about any of these matters, they will have made what is known as a ‘protected disclosure’.
When a protected disclosure is received, it should not be ignored. You should treat the disclosure seriously and react to it promptly. It is advised to:
- Hold a meeting with the whistleblower to understand the exact nature of the malpractice or wrongdoing. It may be necessary to ask them to provide a statement detailing the basis for their claim.
- Make it clear that their disclosure will not affect their position at work and provide whatever support they require while matters are investigated, as workers are likely to experience a great deal of anxiety about speaking out.
- Investigate the disclosure by interviewing relevant witnesses – maintaining confidentiality at all times – and gathering evidence that both supports and challenges the allegations.
- Once investigations have concluded, write to the worker who made the disclosure to inform them of the outcome and the basis for your decision.
- If the worker’s claims are not found to be substantiated, ensure they are in no way penalised for making the disclosure, unless it can be shown that the worker has deliberately lied or created false information out of malice.
- If the worker’s claims are upheld, you must take appropriate action. This may include reporting the matter to an appropriate authority or government department and taking disciplinary action against those involved in wrongdoing.
It is a good idea to keep a record of any whistleblowing disclosures you receive and details of your investigations, as this will allow you to demonstrate that workers’ concerns were taken seriously. It will also allow you to monitor the situation and take further action taken if necessary.
What if I discover that a worker is about to blow the whistle?
A 2019 Employment Tribunal case addressed a glaring hole in whistleblowing laws by extending legal protections to workers who are contemplating blowing the whistle but who have not yet made a disclosure.
This will prevent situations where an employer discovers that a worker is researching how to blow the whistle and suspends or dismisses them before they can do so.
What are the legal risks when handling protected disclosures?
Under the Public Interest Disclosure Act (PIDA), employers cannot legally subject workers to punishment, victimisation or otherwise unfair treatment as a form of retaliation for blowing the whistle.
This means that if workers have been disciplined, dismissed or selected for redundancy due to having made a disclosure, they can submit a claim to an Employment Tribunal for unfair dismissal. Unlike ordinary dismissal cases, where there is a qualifying service period of two years, if an employee can show that the main reason for their dismissal was that they raised concerns about wrongdoing at work, they will be able to make a claim for automatic unfair dismissal, regardless of length of service.
This doesn’t mean, however, that someone who has raised a concern under a whistleblowing policy cannot be managed (monitored, disciplined, dismissed, etc.) for reasons unrelated to the complaint, but employers should make sure that these actions are justified and entirely unrelated to their disclosure.
What is a whistleblowing policy?
A whistleblowing policy will help to encourage workers to report suspected fraud, corruption or dangerous activity and provide clear direction for managers on what to do when a disclosure is made. Whistleblowing policies will vary according to the employer’s size and resources and the nature of the organisation but should state:
- The types of issues that can be raised
- How to raise a concern
- How whistleblowers will be protected from victimisation and harassment
- The process for evaluating and investigating reports
The law does not require employers to have a whistleblowing policy in place, but it is highly advisable to do so, as this will demonstrate a willingness to listen to workers and encourage them to raise any issues internally. By developing a framework for investigation, you will be better equipped to remedy any problems that have been identified by the whistleblower.
It’s important that all workers understand your whistleblowing policy and how it applies to them. The means making sure that the contents of the policy are clear and easy to follow and that the policy is accessible to everyone, perhaps by including it as part of your Employee Handbook. You should also consider providing training to develop managers’ confidence in dealing with disclosures in a fair and consistent way, as well as training for workers to raise awareness on how to make a disclosure.
What are the different types of whistleblowing?
As mentioned above, there are many different examples of whistleblowing in the workplace, ranging from somebody speaking out about their employer breaking the law in some way (such as not having the right insurance or breaching the terms of the Coronavirus Job Retention Scheme by having employees work while furloughed) to someone raising concerns about the conduct of a colleague, manager or third party (for example, drawing attention to bullying, threatening or intimidating behaviour).
Another whistleblowing example that is particularly relevant right now is employees raising health and safety concerns. These types of whistleblowing cases have become increasingly common due to the coronavirus pandemic, with workers raising both genuine concerns about the adequacy of employers’ COVID-secure measures and also, in some cases, using this as a readymade reason not to attend work.
This puts organisations in a difficult position, as the Employment Rights Act 1996 prevents employers from disciplining or dismissing workers for leaving or proposing to leave work “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert.” Given the high potential for these types of whistleblowing cases in 2021 and the legal risks involved, it’s best to take specialist advice before taking action.
Get expert support now
While nobody wants to hear of malpractice within their organisation, employers shouldn’t fear whistleblowing disclosures. Encouraging workers to raise genuine concerns in good faith will help to promote a transparent and open relationship and allow you to take timely action against those responsible, which will put you in better position to limit reputational, financial and legal damage.
When faced with whistleblowing disclosures, seeking advice at the earliest opportunity is key. If you require support, our Employment Law specialists can guide you through the process and provide valuable reassurance that disclosures are handled appropriately. We can also help you to create a whistleblowing policy to keep you on the right track.
Simply call 0345 226 8393 or request a free consultation using the button below.
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