Whistleblowing: Employees’ Rights
Whistleblowing is the term used when an employee or worker reports certain types of wrongdoing, typically some form of dangerous or illegal activity that they have seen at work. In other words, they ‘blow the whistle’ to either senior management or the authorities on what they have witnessed.
The whistle-blower is protected by law and should not be treated unfairly, or lose their job, in consequence of blowing the whistle.
The law on whistleblowing is there to ensure that if someone sees something wrong in the workplace, they are able to raise this within their organisation, or to a regulator, or wider, without jeopardising their job security.
What does the law say on whistleblowing?
Legal protection for whistle-blowers in the UK is provided for under the Public Interest Disclosure Act 1998, amending the Employment Rights Act 1996 (ERA).
Under these legislative provisions a whistle-blower has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer on the ground that the worker has made a protected disclosure.
Employees who make “protected disclosures” can claim unfair dismissal if they lose their job in consequence of reporting a wrongdoing. The ERA also provides the right for a worker to take a case to an employment tribunal if they have been subjected to a detriment because they have blown the whistle. A detriment could include an employer’s refusal to offer promotion or training opportunities.
What constitutes a whistleblowing complaint?
To be afforded the protection of the law the wrongdoing disclosed must constitute a “qualifying disclosure”.
This is defined as any disclosure of information that, in the reasonable belief of the worker making the disclosure, tends to show past, present or likely future wrongdoing falling into one or more of the following categories:
- A criminal offence
- A failure to comply with a legal obligation
- A miscarriage of justice
- A risk to the health or safety of any individual
- A risk of damage to environment
- A deliberate attempt to conceal information tending to show any matter falling within any one of the above categories.
The worker who makes a disclosure must also reasonably believe that they are acting in the public interest. The whistle-blower need not be correct about any concerns that they have, provided their belief is honestly held in the circumstances prevailing at the time of the disclosure.
Personal grievances, including bullying, harassment and discrimination, do not usually constitute whistleblowing, not unless they give rise to an overall public concern. These would need to be addressed under any grievance policy.
To whom must a whistleblowing complaint be made?
For a qualifying disclosure to be protected, it must be made by a worker to an appropriate party. This includes the employer, or any other person whom the whistle-blower reasonably believes to be solely or mainly responsible for the relevant failure.
A disclosure can also be made externally, usually to what’s known as a ‘prescribed person’. This can be an individual or organisation, such as a regulatory body. The relevant prescribed person depends on the subject matter of the suspected or known wrongdoing, for example, concerns about unsafe practices at work could be made to the Health and Safety Executive.
Other disclosures may be protected, but only where in the particular circumstances they are reasonable, or where special provision is made for disclosures relating to exceptionally serious problems. If a worker goes to the media, they can expect in most cases to lose their whistleblowing legal rights.
What is a whistleblowing policy?
A whistleblowing policy is a written policy that sets out the policies and procedures in place for dealing with a protected disclosure.
It should set out the existence and purpose of the procedure, how protected disclosures will be dealt with, as well as the rights and remedies for whistle-blowers. In particular, it should make it clear that an individual will not be treated unfairly, or subject to a detriment, for reporting a wrongdoing in good faith.
Who should have a whistleblowing policy in place?
The law does not require an employer to implement a whistleblowing policy to handle protected disclosures. A worker can make a disclosure in the absence of a written policy, either by using any existing grievance procedures or otherwise.
Needless to say, it is good practice for all employers to have some form of whistleblowing policy in place. By implementing clear procedures and policies, an employer will help to create an open, transparent and safe working environment for workers to feel able to speak up without fear of reprisal.
If the matter results in a complaint to the employment tribunal, the existence of a whistleblowing policy, and compliance with any internal procedure, may help to determine whether or not it was reasonable for a worker to make a disclosure.
Who is protected by a whistleblowing policy?
The law on whistleblowing extends to employees, trainees and even agency workers. Workers who are not employees, for example, workers supplied through an agency, cannot make an unfair dismissal claim under whistleblowing law, but can claim that they have experienced detrimental treatment.
Any whistleblowing policy should clearly set out who is afforded protection and what remedies are available in the event of them being treated unfairly or suffering a detriment as a result of making a protected disclosure.
What should a whistleblowing policy include?
There is no standard whistleblowing policy, where policies can vary depending on the size and nature of the organisation. Regardless of the undertaking, any whistleblowing policy should be clear, simple and easily understood.
A best practice whistleblowing policy should include the following:
- An explanation of what whistleblowing is and the purpose of the policy.
- An explanation of what constitutes a protected disclosure.
- An explanation of the organisation’s procedures for handling whistleblowing complaints, including to whom to report any concerns and making an external disclosure to a relevant prescribed person(s).
- A commitment to treat all disclosures consistently and fairly.
- A commitment to take all reasonable steps to protect the identity of the whistle-blower, where requested, unless required by law to break that confidentiality.
- Clarification that any contractual provisions relating to confidentiality, for example, so-called gagging clauses in settlement agreements, do not prevent workers from making disclosures in the public interest.
- An explanation as to what feedback the whistle-blower can expect to receive, subject to any legal requirements, for example, data protection.
- An explanation as to how any personal data received in connection with the disclosure will be processed so as to comply with data protection legislation, including the accused’s right to access any personal data held.
- An explanation as to what steps can be taken if the whistle-blower is not happy with how the disclosure has been dealt, for example, they believe their concern was not treated seriously or the wrongdoing is continuing.
- An explanation relating to the rights and remedies for whistle-blowers, in particular that an individual will not be treated unfairly or subject to a detriment for reporting a wrongdoing in good faith.
- A signpost to information and advice to those thinking of blowing the whistle, for example, the Advisory, Conciliation and Arbitration Service (ACAS), the whistleblowing charity Public Concern at Work or the worker’s trade union.
What steps should be taken once a whistleblowing policy has been implemented?
Once a whistleblowing policy has been put in place, this should be made easily accessible and actively promoted so that workers are aware of its existence and encouraged to use it.
The whistleblowing policy could be included in any new-starter induction pack, or made accessible in staff handbooks or on the staff intranet. Awareness of the whistleblowing policy could also be raised by way of marketing communications.
Training should be given to workers on the use of the whistleblowing policy, including how disclosures should be made and how they will be acted upon, as well as training for managers in how to deal with a disclosure.
Why take legal advice when drafting a whistleblowing policy?
By having a whistleblowing policy in place, this may help to prevent any wrongdoing that could damage an organisation’s reputation and performance, and could even protect people from a risk of harm or death.
A specialist in employment law and the law relating to protected disclosures can help to draft a whistleblowing policy, specifically tailored to the size and nature of the organisation in question.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. While every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.