Contact one of our advisors now Call 0800 088 6004

Blowing The Whistle On Bad Practice

Reasons to choose Wilson Browne

What is a “whistleblower”?

A whistleblower is a person, often an employee or worker of an organisation, who reveals information about an activity that is illegal, unsafe, fraudulent, immoral or illicit within an organisation known as a “protected disclosure”.

The terms comes from the use of a whistle to alert the public about a crime taking place or the breaking of rules during a game. In the 19th century law enforcement officials became associated with the term “whistle blower” due to their usage of whistles.

What organisations are affected?

Both public and private organisations can be whistleblown against. 

How do people whistleblow?

There are two types of whistleblowing: internal – where a whistleblower reports misconduct to someone else in the organisation; and external – where they contact an outside agency to inform them of their allegations and communicate information.

The wrongdoing disclosed must be in the public interest. This means it must affect others, for example the general public. Whether a disclosure is in the public interest will depend on the number of people affected, the nature and impact of the wrongdoing and who the wrongdoer is. The impact must be wider than one employee’s personal circumstances.

What amounts to a protected disclosure for whistleblowing?

If someone whistleblows they are protected in law if it falls under any of the following categories:

  • a criminal offence, for example fraud
  • someone’s health and safety is in danger
  • risk or actual damage to the environment
  • a miscarriage of justice
  • the company is breaking the law – for example, it does not have the right insurance
  • they believe someone is covering up wrongdoing

What are an employer’s responsibilities regarding whistleblowing?

 It is good practice to have a working environment where employees and workers are able to speak up and feel safe in an open and transparent workplace. Companies are not required in law to have a whistleblowing policy however having one shows employees and workers that management welcome issues to be brought to their attention. 

Employees and workers are eyes and ears in the business and may see things that management would miss. Value their input. Offer training and support, respond quickly to any concerns raised and resolve the issue putting the wrongdoing right. This could prevent an external whistleblowing occurring. Making sure that managers, at all levels, are aware of what protected disclosures are and are appropriately trained in dealing with any issue that arise. 

What can happen to a whistleblower after their disclosure?

Unfortunately some employees and workers are fired after bringing a protected disclosure, or are pressured into quitting. Those who remain in their role can be bullied, demoted, isolated or harassed. Sometimes having whistleblown and being subjected to pressure can have a detrimental effect on employees and they can “crack” and become depressed, suffer panic attacks or drink to cope with the pressure.

The Whistleblowing law is set out in the Employment Rights Act 1996 (as amended by the Public Interest Disclosure Act 1998). It provides the right for an employee or worker to take a case to an employment tribunal if they have been victimised at work or they have lost their job because they have ‘blown the whistle’. The claim is then brought as an unfair dismissal.

What impact can this have on a business?

In a recent case the Employment Tribunal upheld the Claimant’s claims of unfair dismissal and automatic unfair dismissal which were related to protected disclosures and detriment. The employer was ordered to pay £18,249.42 in relation to the unfair dismissal claim. The Employment Tribunal also granted a 25% uplift of the compensatory award as the employer had failed to follow any process when dismissing the Claimant.

There was also an “injury to feelings” award made of £1,500.00 for the detriment claim which had also been upheld.

In January 2020 the Claimant, a cleaner, had made a protected disclosure complaint via his Union representative in relation not being given protective equipment to clean toilets, having inadequate equipment, having to drive a vehicle with expired insurance and being under pressure to work additional hours. At the start of the pandemic in May 2020 he made a further protected disclosure on the same issues and the lack of PPE. The Union raised the issues with the employer.

In September 2020 the Claimant was dismissed following alleged complaints from clients about poor performance. There was no process followed and the Claimant did not have sight of the “complaints”. The Claimant appealed but a formal appeal hearing was never arranged.

The lack of any process being followed in relation to the dismissal clearly damaged the employers defence at tribunal. This case shows that the Claimants disclosures and the involvement of the Union were the real reasons for the dismissal.

We can take from this the importance of taking protected disclosures seriously. You can see the protection employees and workers have as a result of raising such disclosures. It is imperative that a fair process is followed if there are genuine performance concerns. You must ensure that all the relevant information is shared with the employee/worker.

If you would like some assistance with putting a Whistleblowing Policy in place or having your current policy reviewed please contact us on 0800 088 6004

Hazel Taylor

Posted:

Hazel Taylor

Paralegal

Hazel is often the first point of contact for clients of the employment team. She is a paralegal in our employment team having worked previously in both the Commercial Litigation and Company & Commercial teams as a legal secretary.