Please see Update - Whistleblowing in the Workplace.
“Whistleblowing” is the common term given to the situation where an individual makes a protected disclosure.
A protected disclosure may be made where an individual raises concerns about malpractice in an organisation. Workers who “blow the whistle” have, in certain circumstances, a right not to be dismissed or subjected to any other detriment as a result.
Whistleblowing claims can be complex and costly to handle. Employers should be aware that:
- A worker will be protected under the whistleblowing legislation where they make a disclosure which relates to specified kinds of malpractice (for example breach of a legal obligation, criminal offences, concerns about health and safety practices). It is not always obvious when a worker is “blowing the whistle.” There is no requirement in the legislation for a disclosure to be made in a particular way. The disclosure could be made in an email, during a meeting or raised as part of a grievance. In addition, the disclosure does not have to relate to the employer’s business and could concern a client or supplier. Employers should be alert to any allegations of malpractice within their organisation or that of a third party.
- A worker who makes a disclosure will be protected where they have a reasonable belief in the disclosure and the disclosure is made in the public interest. Provided that the worker can point to objective grounds to justify their belief, it does not matter that no legal obligation exists or the belief is based on incorrect facts.
- Recent case law on what amounts to “public interest” shows that it will be relatively simple for workers to satisfy this requirement. In the case of Chesterton Global Ltd v Normohamed, the Employment Appeal Tribunal (EAT) found that a disclosure relating to the earnings of 100 senior managers was in the public interest. We now have the Court of Appeal decision. Please see Update - Whistleblowing in the Workplace.
- This approach has recently been followed in the case of Underwood v Wincanton PLC. In this case a haulage driver relied on a letter written by him and three other drivers about the unfair allocation of overtime, which suggested overtime was not given to drivers who were scrupulous about vehicle safety. The EAT overturned the employment tribunal’s decision to strike out the claim. The EAT found that the employment tribunal had taken too narrow a view of the term “public”. The EAT took the view it could mean a subset of the general public comprised solely of employees of the same employer. The EAT considered that the suggestion in the letter that employees were being punished for carrying out vehicle checks was sufficient to satisfy the public interest test. The principles set out in these cases may enable workers to pursue whistleblowing claims relating to their personal interests in some circumstances. Please see Update - Whistleblowing in the Workplace.
- Although the legislation in this area is drafted to encourage workers to make disclosures internally, workers who make external disclosures will be protected in some circumstances. In particular, disclosures can be made to "prescribed persons" identified in legislation. Provided the worker believes the information is substantially true and concerns a matter within that person's remit, there is no need to tell the employer first. Employers should ensure that workers are aware that it is preferable to report matters internally in the first instance by putting appropriate policies and procedures in place to encourage employees to do so.
- A worker who has made a protected disclosure has the right not to be dismissed or subjected to detriment as a result of making the disclosure.
- A worker suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work. This is a wide interpretation and could include matters such as ostracism, failure to give a pay rise, unfair selection for redundancy or providing unfavourable references. Where a worker is dismissed for making a protected disclosure, the amount of compensation that can be claimed is uncapped. Where a worker is subjected to a detriment, the worker can claim any financial losses flowing from the detriment plus an award for injury to feeling of between £600 and £30,000.
- Employees do not need to have 2 years’ service in order to bring a claim that they have been dismissed for making a protected disclosure. It is often the case that an employee with less than 2 years’ service will argue that they have “blown the whistle” in order to challenge their dismissal as they are not eligible to bring an ordinary unfair dismissal claim.
Employers are well advised to ensure that they have suitable mechanisms in place so that concerns raised in the workplace are dealt with promptly and appropriately.