Reasons to choose Wilson Browne
What is the purpose of whistleblowing?
Whistleblowing (also known as making a protected disclosure) occurs when a worker reports what they believe to be an incident of malpractice (usually something that it dangerous or illegal) related to their employment.
The purpose doing so is to try and ensure the wrongdoing does not happen again.
It is important for workers and employers to be aware that the practice of whistleblowing is protected by law.
The Public Interest Disclosure Act 1998 states that an individual should not suffer any penalty (including losing their job) because they have spoken out about their concerns.
For a worker to receive this protection, certain conditions must apply. These will be outlined below, while further advice is available from Wilson Browne’s team of expert employment law solicitors.
We can also help companies draw up a whistleblowing policy that is robust under UK law.
What conditions apply to the legal protection of whistleblowing in the UK?
In order to qualify for protection as a whistleblower under UK law, the individual must be:
- Classed as a worker
- Have a reasonable belief that the information they are providing is true
- Have a reasonable belief that the misconduct they are reporting has already happened or is likely to happen in the future
- Use the appropriate channels when reporting the wrongdoing
What are examples of whistleblowing in the UK?
There are a number of forms of malpractice which may prompt someone to blow the whistle.
- A criminal offence. e.g. a colleague is embezzling money from the business
- Health and safety being compromised. e.g. a construction firm not following proper procedures in order to save money
- Risk or actual damage to the environment. e.g. toxic materials being pumped into a river
- A miscarriage of justice. e.g. a colleague has been wrongly scapegoated for a criminal offence to protect the true culprit.
- Contravention of the law. e.g. a haulage business hiring truck drivers who do not hold the correct licence
In all the above cases, the seriousness of the offence will be compounded if it is believed that the business is involved in an organised attempt to conceal the wrongdoing.
Who does a whistleblowing policy in the UK apply to?
The legal protection for whistleblowing applies to anyone who is:
• a permanent member of staff (e.g. office administrator, construction worker, firefighter, nurse)
• a trainee (e.g. student teacher, apprentice plasterer)
• a worker who has been supplied by an agency
• a co-owner of the business who is a member of a limited liability partnership
What is not covered by whistleblowing in the UK?
We have seen above some examples of behaviour that may lead to whistleblowing.
A worker, however, can only be considered a whistleblower (and protected by the legislation) if they are reporting wrongdoing that will impact on others, like the public.
Personal issues such as harassment or bullying cannot be reported via a whistleblowing policy in the UK. Matters such as these should be taken up via a company’s grievance procedures.
It is also important to be aware that a worker who reports their concerns to the media is likely to lose their rights as a whistleblower.
Can an employer use a gagging clause to remove whistleblower protection?
A common way of resolving a dispute at work is for an employer to ask the worker concerned to sign a settlement agreement (known informally as a gagging clause).
By signing the agreement the worker agrees to forgo some of the protection they are entitled to under UK employment law (one condition may be for them to keep the matter confidential).
In return they are paid compensation from their employer which is usually a larger amount than they would have received through a formal legal process.
Some employers have tried to use such agreements to prevent the individual from acting as a whistleblower and reporting misconduct.
A court may take the view that such a clause is not legally enforceable if it seeks to prevent whistleblowing in the public interest.
Anyone in this position should obtain legal advice over whether their employer can use the agreement to prevent them from making disclosures.
What are the stages of whistleblowing in the UK?
For a worker who is aware of wrongdoing at their company, blowing the whistle can appear to be a daunting prospect due to the fear of recrimination from their employer.
Individuals in this position can be reassured that legal protection is in place to safeguard their interests and enable them to report malpractice without the fear of suffering adverse consequences.
Someone who wishes to raise an issue should follow the steps outlined below.
Report your concerns
Once a worker is satisfied there is a problem that needs to be addressed, they should report the matter as soon as possible.
In many cases, this will mean a worker informing their own company of what has been happening. The process may be simplified if the business has its own whistleblowing policy – but it is still possible for someone to report their concerns to their own employer even if this is not the case.
There may be instances where an individual is reluctant to inform their own superiors of the issue – either because they are worried about what the reaction will be or because they believe their bosses might be part of the wrongdoing.
One option in such cases is to obtain expert legal advice and guidance on your best course of action.
The worker could also choose to report the matter to what is termed a prescribed person or body – these are individuals who carry out a watchdog role over particular industries or sectors. For example, the Financial Conduct Authority (FCA) has responsibility over the behaviour of businesses including banks and building societies.
It is important to establish before approaching a prescribed person or body that they have the power to investigate the matter.
Despite the legal protection available to whistleblowers, some workers feel they would prefer to report their concerns anonymously. It is possible to do this but it might make it more difficult for the employer or prescribed person or body to investigate the matter thoroughly because they will not be able to come back to you for more information.
One way forward in such circumstances is for the individual to give their name but request confidentiality; this should be respected if possible. There can be no guarantees, however, as the nature of the complaint may enable others to identify the whsitleblower.
How your concern will be handled
Once you have reported the matter, the person or body concerned will consider everything you have said and decide how to proceed. Providing as many details as possible is vital in enabling them to reach an informed judgement.
After reporting the matter and providing any additional information requested, an individual will play no further part in any subsequent investigation.
While the person or body to whom the matter has been reported may keep them updated about developments, this may be limited by their duty of confidentiality to others.
What if an employee is not happy with the way that a case has been handled?
If the individual reported the case to a manager at their company, they have the option of approaching someone more senior and asking them to look into it. Alternatively, they could report the matter to a prescribed person or body.
Should none of this bring a satisfactory resolution, they could seek assistance from:
• their trade union
• the Advisory, Arbitration and Conciliation Service (ACAS)
• Protect (a whistleblowing charity)
What are the consequences of whistleblowing in the UK?
Sadly, there have been cases of workers being discriminated against by their employers after having raised legitimate concerns over wrongdoing in the workplace. Such discrimination could include being denied overtime opportunities, overlooked for promotion or even dismissed from their job.
We have seen above, however, that the law seeks to protect the interests of whistleblowers in these circumstances.
Should a worker be discriminated against or treated unfairly (including having their employment terminated) after making a disclosure they may be able to take their case to an employment tribunal and seek compensation. Under UK law they can claim against both the employer and specific individuals (e.g. a manager).
There is no cap on the compensation that can potentially be awarded by a tribunal and the worker can also make a claim for interim relief which, if successful, would entitle them to continue to receive their salary until the hearing takes place (if they have been dismissed by their employer).
Speed is of the essence in such situations. By law, the individual must bring the claim against their employer within three months less one day of the unfair behaviour taking place. They should, therefore, seek legal guidance as soon as possible.
How should employers handle whistleblowing?
It is vitally important for employers to handle instances of whistleblowing with integrity and to be as open as their duty of confidentiality allows.
Failure to respond to whistleblowing in an appropriate manner can have serious consequences for an organisation, including:
- Lost opportunity to prevent wrongdoing
- Damaged relationship with the aggrieved party which may affect their future performance
- Reputational harm if it is suspected the company engages in cover-ups
- Negative publicity and financial loss should an employment tribunal uphold a complaint
There are a number of positive steps an employer can take regarding whistleblowing. These include:
- having a whistleblowing policy in place to dictate how claims of wrongdoing will be investigated
- providing all workers with comprehensive training so that they are aware of how to raise an issue, the information they must provide (particularly important in the case of anonymous complaints where it will not be possible for the employer to ask for follow-up information), and how the company will look into their complaint
- respect requests for confidentiality as much as possible (in cases where the whistleblower has come forward openly but asked that their identity is not made known to other parties) but make clear from the outset that this cannot be guaranteed
- keep the worker who made the complaint as updated as possible about the investigation without compromising other people’s confidentiality
ensure that, regardless of the outcome of the investigation, the worker who made the disclosure is not discriminated against
- provide generic information on whistleblowing instances on an annual basis so that workers have confidence that such disclosures are taken seriously
- regularly review all procedures relating to whistleblowing to ensure they remain fit for purpose
What does the future hold for whistleblowing in the UK?
Some experts believe that the law in the UK around whistleblowing may be strengthened in the future – making it even more important that employers treat the issue in an appropriate manner and have a robust whistleblowing policy in place.
Where can I get more advice on whistleblowing?
The issue of whistleblowing is a highly sensitive one which needs to be handled with great care and integrity.
For a worker who wishes to report malpractice, there is the fear that they won’t be believed and, even worse, subsequently thought of as a troublemaker by their company.
From the point of view of the employer, meanwhile, they are faced with the task of investigating the complaint thoroughly while respecting the rights of all concerned and avoiding reputational damage to their organisation.
In both sets of circumstances, it can be highly advisable to seek legal guidance on the best course of action.
At Wilson Browne, our employment law solicitors have a successful track record in all matters relating to whistleblowing and will advise you on your best course of action at what can be a very difficult time.