Whistleblowing

In this article we provide an overview of the protection available to whistleblowing employees and some practical tips for employers.

These days it seems that issues relating to whistleblowing are never far from the headlines and if mishandled, can attract significant adverse publicity for employers, not to mention the potential sums that can be awarded to a whistleblower.

What does the law actually say?
The European Court of Human Rights held that protection for whistleblowers was a human right under Article 10 of the European Convention on Human Rights, which protects freedom of expression. The issue is important from an employment perspective because the Public Interest Disclosure Act 1998 inserted the following protection into the Employment Rights Act 1996.

The right not to be subject to a detriment for having made a protected disclosure and a dismissal for having made a protected disclosure will be automatically unfair.There are a number of requirements to be satisfied before a disclosure is protected, the employee must disclose information which he has a reasonable belief tends to show one of the following six relevant failures.

•    Criminal offences
•    Breach of a legal obligation
•    Miscarriages of justice
•    Danger to health and safety
•    Danger to the environment
and
•    Deliberate concealing of information about any of the above

Why is the issue so important for employers?
Many day to day workplace complaints can be protected disclosures. In particular, if an employee complains about bullying by a manager or being overloaded with work, both of these can be argued as breaches of the contract of employment and so fall within the breach of a legal obligation category. The effect of this is to bring all but the most spurious grievances within the scope of whistleblowing protection.

The concept of detriment is quite widely defined. In a number of cases, merely revealing the whistleblowing employee’s identity to others has amounted to a detriment. Furthermore, unfair dismissal claims in the Employment Tribunals involving whistleblowing allegations are more troublesome for employers than normal unfair dismissal cases for a number of reasons:

A dismissed employee can apply for what is known as interim relief when they submit their unfair dismissal claim, provided that claim is submitted within seven days of termination. This is essentially an order that they be reinstated on full salary and benefits until the final determination of their claim, including any appeal. The Employment Tribunals aim to resolve straightforward unfair dismissal claims within 26 weeks but in reality many take much longer. This is particularly so in whistleblowing cases, which tend to be factually complex.

If the employee subsequently loses their case at the final hearing, there is no obligation to reimburse the employer the salary paid during the period of reinstatement. To succeed in an application for interim relief an employee must show only that it is likely that their whistleblowing claim will succeed at the full trial. The test is therefore not a difficult one for employees to meet, particularly given the draconian nature of the interim relief order.

To date applications for interim relief have been rare. However, it is a powerful tool available to dismissed employees, particularly as a way of encouraging employers to settle Employment Tribunal claims more quickly, and for a higher amount.

In addition to compensation for financial loss an Employment Tribunal can also make an award for injury to feelings. Finally, protection against detriment for having made a protected disclosure applies not only to employees but also to workers which is defined more widely and includes any person who has contracted to do work personally, unless the person is genuinely self-employed.

What practical steps can employers take to protect their position? 
Review your organisation’s whistleblowing policy to ensure it is robust and accessible. The main purpose of the policy is to encourage workers to raise concerns internally and provide a mechanism by which to do so. Remember that a whistleblower will often need to raise concerns about their own manager or department. The policy should also detail how concerns will be investigated and dealt with, and the protection from reprisals that will be available for whistleblowers.

Ensure the policy is drawn to workers’ attention through induction and other training, and keep a written record of having done so. Proving a clear means of blowing the whistle internally ought to aid in reducing external disclosures which may bring unwanted media and regulator attention. In particular, for external disclosures other than to a regulator to be protected, the employee must show it was reasonable in the circumstances to make the disclosure externally. It is very unlikely that an external disclosure will be protected where the employee is aware of the internal channels and has no good reason not to use them.

Keep a clear audit trail of disclosures made and actions taken. An Employment Tribunal will often attach greater weight to contemporaneous documents than later witness testimony.

Consider how to treat whistleblowers who do not wish their identity to be more widely known within the organisation. The desire to remain anonymous must be balanced against the right of any employee accused of wrongdoing to test the evidence against them in a disciplinary hearing.

Be prepared to be contacted by a regulator. When a whistleblowing claim is submitted to the Employment Tribunals the claimant can indicate that they would like details of their complaint to be passed to the relevant regulator.

Where a worker who has made a protected disclosure has been subject to a detriment, the employer must show that the protected disclosure did not materially influence its decision about how to treat the worker. This meant that the employer could redeploy whistleblowing employees to resolve a dysfunctional workplace situation which had arisen as a result of their protected disclosures, without falling foul of the whistleblowing legislation.

An employer cannot be vicariously liable under the legislation if a whistleblowing employee is victimised by their peers (rather than the employer) for having made a protected disclosure.

These developments may narrow the scope of claims slightly, but do nothing to diminish the need for employers to protect their position as we suggest above.

As you will see this is a complex area and should a situation arise we can help you to deal with it but just as importantly we can also make sure that you have the correct systems and procedures in place in the first instance too.

Dundee Employment Law
Afren House
Whitehill Faulds
Bonnyton Road
Kirkton of Auchterhouse
By Dundee
DD3 OQT
T: 01382 320357
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