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Whistleblowing – what is it?

The act of a worker making a qualifying disclosure to an employer, regulator, legal adviser, minster or other responsible or prescribed person about a dangerous, illegal or otherwise unacceptable activity or omission.

Subject to filling certain criteria, the Public Interest Disclosure Act 1998 (PIDA) provides that it will be a protected disclosure and the whistleblower will not face adverse consequences such as dismissal or victimisation for doing so.

How to spot a whistleblowing claim

The scope of protection under PIDA extends the definition of worker to include for example homeworkers, trainees and agency workers. It does not apply to volunteers, interns, job applicants, those who are self-employed or any person who, in making the disclosure commits an offence in doing so.

A protected disclosure means a qualifying disclosure; any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show that the following has happened, is happening or is likely to happen:

  • a criminal offence;
  • a breach of a legal obligation;
  • a miscarriage of justice;
  • danger to health or safety of any individual;
  • damage to the environment; or
  • deliberate concealment of any of the above.

A disclosure of this kind must be made to a prescribed person either in the organisation or in another organisation such as a public body.

The whistleblower must reasonably believe (even if reasonably mistaken) that they are making a disclosure of this kind in the public interest and there a several factors which determine this such as:

  • the amount of people whose interests the disclosure serves;
  • the nature of the interests affected and the extent to which they are affected; and
  • the nature of the wrongdoing disclosed.

The public interest element is intended both to prevent workers from misusing whistleblower protection i.e. for their personal benefit but also to encourage openness,

Guidance for employers

The dismissal of a worker will be automatically unfair if the reason, or principal reason, is that they have made a protected disclosure. There is no qualifying minimum period of service, and tribunals are not restricted by a cap on the level of compensation.

It is unlawful for an employer to subject one of its workers to a detriment on the ground that they made a protected disclosure. In addition, an employer is vicariously liable for the act of a worker in subjecting a whistleblower to detriment. The employer will only have a defence if it took all reasonable steps to prevent the detrimental treatment.

So, employers need to have an understanding of whistleblowing legislation, the protection that it affords workers and of course the pitfalls which they should look out for, for example, issue can arise where it is not clear who the worker should report their concerns to. The concern might be reported a number of times before reaching the appropriate person, effectively widening the scope for detrimental treatment (which the employer might be vicariously liable for).

Whistleblowing Guidance for Employers provides practical steps in respect of putting in place an effective whistleblowing policy: –

  • encourage concerns to be raised as soon as possible;
  • give guidance on how to determine when the worker should use the whistleblowing policy and when they should use another policy such as a grievance policy;
  • give workers a choice as to whether to report their concerns to their line manager or to an individual outside the normal line management structure;
  • recognise that disclosures may sometimes need to be made externally;
  • encourage openness but also enable workers to raise concerns in confidence as far as is possible;
  • tell workers how to obtain advice on making disclosures from a confidence independent helpline;
  • provide feedback to be given to the worker on the outcome of their disclosure if they wish; and
  • make clear that making a malicious false allegation would be a disciplinary offence.

The next step is for the employer to effectively cascade the policy throughout the organisation and offer training as they see fit.

This should encourage workers to report concerns of a serious nature at an early stage meaning that employers can deal with it efficiently and internally, where possible. This avoids potential damage to the organisation later down the line.

If you need any further information please contact the team at Consilia Legal.

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