Matt Gingell is often seen on tv and in the press talking about whistleblowing and other employee legal issues.

Whistleblowing advice for employees

The topic of whistleblowing is very much in the limelight following recent events.  Employees and directors are key to exposing scandals for the benefit of the public. However, they naturally fear for their jobs if they blow the whistle.  The government recognised this fear and has built various protections into the law on whistleblowing.

Whistleblowing law

The law safeguards whistleblowers when they have been dismissed or have suffered detrimental treatment by their employers following a protected disclosure. There may also be a whistleblowing policy within the employment contract.

Protected disclosure

It will be automatically unfair if an employee is dismissed because they have made a protected disclosure. The same would apply in redundancy situations.  There is no qualifying period and no cap on compensation.

It is also unlawful for employers to subject any employee to a detriment.  A detriment includes threats, disciplinary action, loss of work or pay or damage to career prospects.

Employers will be liable for detrimental actions against whistleblowers by a co-worker because he or she has made a protected disclosure. Employers will have a defence if they took all reasonable steps to prevent the detriment.

Disclosure

The information disclosed must be based on a reasonable belief of the employee.  The reasonable belief is that one of the following has happened, is happening or is likely to happen:

  • threat or damage to the health and safety of an individual;
  • breach of a legal duty;
  • a criminal offence;
  • miscarriage of justice;
  • environmental damage; or
  • the deliberate hiding of information about any of the above.

To be a qualifying disclosure, the employee must reasonably believe that the disclosure is ‘in the public interest’.  The disclosure can still qualify if it is partially made in self-interest, providing the employee reasonably believes that it was in the public interest as well.

The primary method of whistleblowing should be a disclosure to your employer. A qualifying disclosure to the employer will be a protected disclosure.

Some external disclosures are protected in some circumstances:

Prescribed persons

There is a list of ‘prescribed persons’ to whom employees can make disclosures. There is no need to alert the employer, as long as the employee believes that the information is substantially true and concerns a matter within that person’s area of accountability.

The employee will only be protected if the disclosures is genuinely believed to be true information and the employee is not acting for their own advantage. Unless the matter is “exceptionally serious”, they should disclose the information to the employer or a prescribed person. If they have failed to do so, they must have believe that disclosure to their employer would result in evidence being destroyed or repercussions to them directly.

Disclosure process

The correct approach for an employee will be to :-

Raise concerns internally at first

Genuine concerns about dangerous or illegal practices should usually be raised internally in the first instance.  Making a disclosure is not the same as raising a grievance.  Disclosures are protected in a way that grievances are not.  However, there are similarities. The similarities are the grounds must be clearly articulated.

External disclosure

You are allowed to give information to a statutory regulator or other ‘prescribed person’ without telling the employer.  External disclosure without having disclosed internally first is much more difficult to justify.  Disclosure to the media will only be protected on the rare occasion and only if no payment was received for the story.

Reasonable belief

Disclosures will only be protected if the employee reasonably believes that the disclosure is ‘in the public interest’.

Anonymous disclosure

Employees can retain their anonymity by reporting anti-competitive behaviour using the European Commission’s recently introduced whistleblowing tool. The encrypted messaging system also allows for a two-way communication between the employee and the Commission. Anonymous disclosure should encourage more whistleblowers to report issues.

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