Whistleblowing

Whistleblowing is essentially the reporting of wrongdoing in the workplace. The law has worked to protect those who speak out in this way, to ensure that their employment rights remain unaffected and that they cannot be victimized for speaking out.

What is the legislation? The Employment Rights Act 1996 provides a structure within which whistleblowers can make a disclosure in the public interest and this was amended by the Public Interest Disclosure Act 1998, which introduced increased protection for whistleblowers.

Who does it protect? ‘Workers’ are protected, which means that the legislation provides assistance to a much wider category of people than just employees. ‘Workers’ will not cover those who are definitively self-employed but it will cover those who are definitively employed, however, it is worth remembering that there are many grey areas in between these two.

How does it protect? The legislation will protect those who have made a ‘protected disclosure’ from being dismissed or suffering any detriment as a result of that disclosure. This protection exists from the first day of employment so there are no time limits that need to be met before someone is protected.

What is a ‘protected disclosure’? This is the act of passing on information that shows that the wrongdoing has taken place. This could relate to an employer, colleague, or anyone else in the business, as long as the whistleblower reasonably believes that the information shows there has been wrongdoing. Potential whistleblowers should be wary of making allegations of wrongdoing without information to back this up.

The whistleblowing may relate to:

a) a failure to comply with a legal obligation;

b) endangering the health or safety of any individual;

c) miscarriage of justice;

d) criminal offences;

e) damage to the environment;

f) deliberately hiding any of the above.

The whistleblower must reasonably believe any wrongdoing involving the points above must have occurred or is likely to occur, although it does not have to have already happened. It is also important that:

– the disclosure is made to the right person – i.e. to a ‘prescribed person.’ Usually, a worker will be expected to raise the issue with an employer, but the act provides for other people or bodies a worker can go to regarding concerns over the employer’s health and safety, for example a Health & Safety Executive. Before making the disclosure it is wise for a worker to check that it is going to be made to the right person otherwise it may not be protected

– the disclosure must be made in good faith – i.e. with honest intent and without malice.

Where to be careful? Employers who find themselves on the other end of an accusation of causing detriment to a worker because of whistleblowing may try to suggest that the disclosure made by the worker was not in good faith, but with malice and dishonest intent. It is important for a potential whistleblower to bear this in mind when making the decision as to when and how they disclose.

There must also be a good case for showing that the detriment suffered by the worker is the result of the worker’s whistleblowing and not for some other reason which can be challenged by employers. For example, an employer may claim that the reason a worker was disciplined was because the worker had fallen out of line, not because he or she had made a disclosure to the employer.

Are there any time limits? Yes, the claim should be brought to an Employment Tribunal within three months less one day of the detriment suffered. Where the conduct that caused the detriment was ongoing, the time limit runs from the last day of the conduct. If the worker was dismissed, it runs from the last day of employment. It is possible for a Tribunal to extend these time limits but this will only usually be done in situations where it was not reasonably practicable for the worker to make the claim in time.

It is important to establish whether or not the ACAS Code of Practice on Discipline and Grievance Procedures (www.acas.org.uk) needs to be followed – if it does, and it is not followed, any employee compensation awarded can be reduced by up to 25% if the employee did not follow the procedure, or increased by 25% if the fault lies with the employer.

What kind of compensation is available? The amount of compensation that can be awarded where a whistleblower has suffered detriment will depend on the detriment and how much loss was suffered. It is potentially unlimited.