Whilst most managers are familiar with the term ‘whistleblowing’, we sometimes find that handling whistleblowing and whistleblowers can prove tricky in practice for many businesses. After all, it’s not usually something you often deal with.
Ask yourself, could you spot when an employee is blowing the whistle? Are you aware of the legal protection that whistleblowers have? It’s important to make sure you know the whistleblowing basics and remain alert, not least because whistleblowers have protection from adverse treatment in connection with their whistleblowing, such as being dismissed. It can be all too easy for this to be overlooked and for a business to inadvertently fall foul of the law.
So, what can be helpful for managers to know when it comes to whistleblowing?
- What is whistleblowing?
- What types of wrongdoing can an employee blow the whistle about?
- Does whistleblowing need to be ‘in the public interest’?
- Who do employees blow the whistle to?
- What protection do whistleblowers have?
1. What is whistleblowing?
Broadly, whistleblowing is where an employee discloses information, usually to their employer, which they reasonably believe shows certain types of wrongdoing has occurred, is occurring or is likely to occur. The employee must reasonably believe that the disclosure is in the public interest.
You need to be alert as there are different ways employees can blow the whistle, for example, it could be done verbally or by email or letter.
2. What are the types of wrongdoing that an employee can blow the whistle about?
There are six types of wrongdoing: criminal offences, breach of any legal obligation, miscarriages of justice, danger to the health and safety of any individual, damage to the environment and the deliberate concealing of information about any of these things.
In practice, these categories are very wide and it’s important to bear in mind that employees can still have whistleblower protection even if it turns out that what they were saying was wrong. Employees are only required to have a ‘reasonable belief’ that their disclosure indicates one of the types of wrongdoing – this will be assessed from the employee’s perspective.
3. Does whistleblowing need to be ‘in the public interest’?
One of the elements needed for a whistleblower’s disclosure to be protected is that they must have a reasonable belief that the disclosure is in the public interest, this can be a particularly tricky area as there is no definition of ‘public interest’ in statute. Employment tribunals have found that there was a public interest element in situations you might not immediately expect. For example, in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed it was found that a senior manager met the public interest requirement when he made disclosures about manipulation of the company’s accounts, which he believed had an adverse effect on commission income for over 100 senior managers, including himself.
4. Who do employees blow the whistle to?
Employees will usually choose to blow the whistle to their employer as you are often best placed to remedy any wrongdoing, however, employees can make external disclosures. There are rules about who an employee can disclose information to externally and the circumstances in which they will qualify for whistle-blower protection if they make an external disclosure. Need to know more? Get in touch.
5. What protection do whistle-blowers have?
It’s automatically unfair to dismiss an employee wholly or partly because they have blown the whistle. Not only do employees have this protection from day one of their employment but, unlike most other types of unfair dismissal, there is no limit on the amount an employment tribunal can award to an employee who succeeds in their claim.
Because of the above, making a whistleblowing claim can be particularly attractive to employees who are dismissed with short service so it’s important to establish whether an employee has blown the whistle before you take any action.
It’s also important to bear in mind that employees also have protection from being subjected to a detriment, such as being disciplined, demoted or not being paid a bonus they would otherwise have been given, because they have blown the whistle.
If an employee in your business raises any concerns or complaints or you are considering taking any action in relation to an employee who has blown the whistle it’s important to seek advice on the facts of your situation before acting.
If you have an employment law issue that you would like assistance with, please don’t hesitate to get in touch.