Whistleblowing Protection

Now that employees usually need over two year’s service before they are able to claim unfair dismissal, they often look for other potential claims to bring against their employer if the relationship ends on a sour note. Whistleblowing is one of those potential avenues as no period of qualifying service is required. Employers would be wise to stay alert to what can constitute “blowing the whistle”, particularly given the recent and upcoming changes in the law.

Law

To be covered by the whistleblowing legislation, the employee’s disclosure must be both a “qualifying” and a “protected” disclosure.

A disclosure will typically be a “qualifying disclosure” where the employee:

  • has made a disclosure of information (rather than simply threatening it). It is still sufficient for the employee to draw attention to matters which are already known by the recipient;
  • has a reasonable belief (even if that belief is mistaken) that the information shows malpractice relating to a criminal offence, breach of a legal obligation, a miscarriage of justice or danger to either the health and safety of an individual or the environment (or the deliberate concealment of these matters); and
  • makes the disclosure in the public interest.

A protected disclosure is made to the employee’s employer, it is also sometimes possible for a disclosure to be made to a third party. For example, a report about a breach of health and safety could legitimately be made to the Health and Safety Executive, rather than to the employer. This is known as an external disclosure, but certain strict conditions apply in order for this to count as a protected disclosure.

Expert Advice

Remember that it is important to identity potential whistleblowing disclosures early on, otherwise you could end up facing allegations from the employee that they have been dismissed (or suffered some other kind of detriment) as a result of their disclosure. That could lead to a claim being brought in the Employment Tribunal.

So we could apply the above principles to an example – say your accounts manager reports to you that he believes the company is evading tax. He comes armed with a copy of the latest accounts and a report he has produced detailing his allegations. He tells you that he is really worried that the company is going to be in serious trouble. This seems to be a “qualifying disclosure” as there has been a disclosure of information, reporting malpractice of a potential criminal offence and breach of legal obligation, and he is not simply reporting it to you because of his own self-interests. The disclosure appears to also be a “protected disclosure” as it is made to you, his employer. Therefore, on the face of it, the employee will be considered as a whistleblower for the purposes of the whistleblowing regime.

Checklist

  • If the employee’s employment started before 6 April 2012, they must have at least one year’s service to bring a claim for ordinary unfair dismissal. If they were employed after 6 April 2012, employees need two years’ service. However, no period of qualifying service is necessary to bring a whistleblowing claim
  • To fall within the scope of the whistleblowing legislation, the employee’s disclosure must be a “qualifying disclosure” as well as a “protected disclosure”.
  • Disclosures can be verbal or written.
  • A disclosure does not need to be made in good faith. However, where a disclosure is not made in good faith, the Tribunal may make a reduction of up to 25% to any compensation subsequently awarded.
  • Employers would be well advised to have a whistleblowing policy in place to make clear the process to be followed in the event that an employee wishes to “blow the whistle”.
  • There are plans to make employers vicariously liable for any detriment that a whistleblower suffers at the hands of their fellow workers. However, there will be a defence for employers if they have taken all reasonable steps to prevent that treatment from occurring. These new provisions are expected to come into force later this Summer.
  • Remember that workers are protected by the whistleblowing laws too – it does not just cover employees.

Beware

Successful whistleblowing claims can be expensive for an employer as there is no cap on the level of compensation that can be awarded (unlike in an unfair dismissal claim where the compensatory award is currently limited to £74,200).

This article was originally published in Caterer and Hotelkeeper, 28 June 2013. To see the original article, please click on the link below:

Whistleblower Caterer and Hotelkeeper

For more information, please contact Katee Dias, 020 7404 0606, kdias@gdlaw.co.uk.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 020 7404 0606 and ask for your usual Goodman Derrick contact.