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 as we explain.
As a guide for employees facing a decision on whether to expose a scandal we have summarised:
- The protection under employment law available to a whistleblower;
- How to go about making a disclosure;
- Ramifications for employers.
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.
Employment law for whistleblowers
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 subjected on the 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.
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:
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.
Employees are able to provide information to legal advisers in the course of obtaining advice.
Responsible third parties
Where an employee reasonably believes a third party (such as a client or supplier) is responsible for the wrongdoing, they are able to inform that third party without telling their employer.
If the employer is a person or body appointed by statute, then the employee is able to report matters to the relevant minister.
The employee will only be protected if he disclosures information to any one else if they genuinely believe the information is true and do not act 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.
How to go about making a disclosure
As a guide for an employee we point out that:
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.
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.
Disclosures will only be protected if the employee reasonably believes that the disclosure is ‘in the public interest’.
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.
Situations where the employer can be found culpable
There are a variety of situations we see where employers have failed in their duties. The most common revolve around:
Failing to operate appropriate procedures for reporting whistleblowing
Employers fail to put in place a whistleblowing policy. The whistleblowing policy should set out procedures by which employees can confidentially report anxieties. The matter can relate to unethical, illegal or other unacceptable behaviour. The policy should enable any disclosure to bypass any management tier that may be involved.
Failing to provide appropriate training on the whistleblowing policy
Employers to fail to make the policy public internally. Often there is no training put in place to educate management on how the policy will work. Management should be aware that any ill-treatment of a whistle blower will result in disciplinary action.
Failing to communicate to the whistleblower
Employers can overlook communication and the need to investigate quickly. Furthermore, employers should keep the whistleblower up to date with the progress. Employers are not always aware that confidentially clauses in the employment documentation will not stop the employee from making an external disclosure. This is because confidentiality clauses are not enforceable on protected disclosures.
Matt Gingell is a partner in the employment law team who has worked on a variety of whistle blowing allegations. Matt has experience in analysing evidence and use of fair procedures. He is also very experienced in dealing with unfair treatment in the work place and finding appropriate solutions.