Whistleblowing – navigating the minefield
A recent article in the Financial Times highlighted a significant recent increase in whistleblowing claims being dealt with by employment tribunals. We consider the reasons for that, and explore how employers should comply with their obligations and avoid claims.
Whistleblowing
An employee or worker “blows the whistle” or makes a “protected disclosure” when they disclose information which in their reasonable belief suggests that one of the following has happened (or is happening, or will happen)
- A criminal offence
- A breach of a legal duty
- A miscarriage of justice
- A danger to health and safety
- Damage to the environment
- A cover-up of any of the above
The whistleblower must reasonably believe that the information is in the public interest. Note that if the whistleblower is mistaken – that there is no criminal offence, breach of legal duty etc – that does not prevent it being a protected disclosure. Nor is it necessary that the whistleblower is acting in good faith.
Whistleblowing concerns can be raised internally, or in some cases externally, for example to a regulator, or even in exceptional cases to the media.
A whistleblower is legally protected against dismissal, termination of contract, or other detrimental treatment, on grounds of having made a protected disclosure. A dismissal due to whistleblowing is “automatically unfair” (so an employer cannot try to justify it) and compensation is potentially unlimited. Such a claim can be brought by employees with limited continuous employment (no need for 2 years’ service).
Increase in claims
It has been reported that whistleblowing claims being dealt with by employment tribunals have increased by 92% between 2015 and last year. While some of that may be attributable to a general backlog of cases in the ET system, it is clear that there has been a material increase in the number of whistleblowing claims being brought.
Why has there been an increase?
Reasons for an increase in claims include
- Greater awareness of whistleblowing protection, with charities such as Protect publicising and encouraging workers to raise genuine concerns about wrongdoing. An increase in whistleblowing sadly tends to lead to an increase in cases of employers failing to properly deal with whistleblowers
- Similarly, a cultural change in society, with high-profile scandals such as the post office debacle showing a clear need for individuals to speak up when they have knowledge of, or suspect, that things are going wrong, or that a miscarriage of justice may be happening.
- Employees with a limited period of continuous service, who are unable to bring a claim of unfair dismissal, may seek to raise a whistleblowing angle in order to be able to bring a claim
- Employees or representatives who are involved in litigation may seek to “raise the stakes” and to achieve a larger settlement, by including a claim such as a whistleblowing dismissal, where the compensation is unlimited
Will this change?
That employees and workers are becoming more aware of the importance of raising concerns about wrongdoing, can only be a good thing, and if employers deal appropriately with these concerns, and with the whistleblower, that will reduce the need for claims to be brought. As the issues around whistleblowing become more publicised employers have every opportunity to develop a comprehensive plan for dealing with protected disclosures and ensuring that whistleblowers are not subjected to detrimental treatment
The new Labour government proposes to abolish the 2 year qualifying period for “normal” unfair dismissal claims, and to make the right to claim unfair dismissal a “day one” right. This may reduce the incentive for employees to add a whistleblowing element in order to be able to bring a claim, and may therefore lead to a reduction in claims which relate specifically to whistleblowing.
How should employers proceed?
The best way to limit the risk of claims being brought, or at least, to ensure they can be successfully defended, is that employers take seriously their legal obligations. Employers should also recognise that employees can act as their “eyes and ears” uncovering wrongdoing that the employer is unaware of, but would want to know about.
What steps should employers consider?
1. Establish a Clear Whistleblowing Policy:
Employers should develop a whistleblowing policy that outlines the procedure for making disclosures, the protections available to whistleblowers and the employer’s commitment to ensuring that whistleblowers are supported. That policy should be communicated to all staff. Training sessions could be considered. There is no legal requirement to have a policy but it is strongly recommended as a means of showing the employer’s commitment to protection of whistleblowers.
The policy should confirm that an employee need not be certain about whether there is wrongdoing taking place, and need not provide evidence, but any genuine concern or suspicion should be raised.
2. Consider Reporting Channels:
Appoint a designated whistleblowing officer or team responsible for handling whistleblowing disclosures. This person or team should be trained to deal with such matters confidentially and sensitively.
3. Ensure Confidentiality:
Assure employees that their identity will be kept confidential as far as possible. This builds trust and encourages more employees to come forward with genuine concerns.
Nevertheless, employers may still receive anonymous disclosures, which can be challenging to investigate, but which should still be taken seriously.
4. Conduct Thorough Investigations:
Ensure that a trained and impartial investigator handles the whistleblowing disclosure. The investigator should have no conflict of interest in the matter being investigated. Gather evidence, interview relevant parties, and keep detailed records.
5. Protect Whistleblowers from Retaliation:
Take proactive steps to protect whistleblowers from retaliation. This includes monitoring for any adverse treatment and taking swift action against those who retaliate – the employer’s policy should make clear that victimisation of a whistleblower may lead to dismissal. Offer support to whistleblowers, such as counselling services
6. Take Appropriate Action:
If the investigation confirms the whistleblower’s allegations, take appropriate corrective action straight away. This may include disciplinary action against wrongdoers, changes to policies and procedures, or reporting the matter to regulatory authorities.
Where appropriate, inform the whistleblower of the outcome of the investigation, at least in general terms, and the actions taken. This reinforces trust that the whistleblowing process is a genuine one and will not lead to problems being covered up.
Conclusion
If the increase in whistleblowing claims is indicative of employees being more willing to raise concerns about malpractice and corruption, that must be a good thing, but it is disheartening to think that employers and businesses may not be offering suitable protection to whistleblowers, leading to claims about victimisation and unfair treatment.
Employers should implement a robust whistleblowing policy to ensure firstly, that they are made aware of wrongdoing in their organisation, and secondly that whistleblowers are able to enjoy the protections that the law provides for them, ensuring that litigation can be avoided.
If you would like further information on this topic, please do not hesitate to contact a member of BTO’s Employment Law Team.
This update contains general information only and does not constitute legal or other professional advice.
Douglas Strang, Senior Associate: dst@bto.co.uk / 0141 221 8012 / Connect with Douglas on LinkedIn
