Whilst most employers have heard the term ‘whistleblowing’ not everyone is familiar with this area or the protections employees who ‘blow the whistle’ have.
With this in mind, we thought we’d have a look at some fast facts regarding whistleblowing.
1. What is ‘whistleblowing’?
In a nutshell, 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.
2. What are the types of wrongdoing an employee can blow the whistle about?
There are six categories 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
- The deliberate concealing of information about any of the above
It’s important to bear in mind that these categories are very wide. Employers should be alert to employees making allegations about these areas as they may be blowing the whistle.
3. If an employee is a whistle-blower, what protections do they have?
It’s automatically unfair to dismiss an employee because they have blown the whistle. This protection applies from the first day of someone’s employment. It’s important to be aware that if an employee is dismissed for whistle-blowing, unlike in most cases of unfair dismissal, there is no limit on the amount of compensation they can be awarded at tribunal.
Whistle-blowers are also protected from being subjected to detrimental treatment, such as having disciplinary action taken against them or not being awarded a bonus or promotion, because they blew the whistle.
It’s important to be able to identify whether someone has blown the whistle so that they can be treated appropriately. A failure to recognise whistle-blowing can mean that an employer accidently falls foul of the law.
4. What if the employee is mistaken?
Employees can still have whistle-blower protection even if it turns out that what they were saying was wrong. They aren’t required to be right (or to have evidence), but to have a ‘reasonable belief’ that their disclosure indicates one of the types of wrongdoing and that there is a public interest element.
5. What does ‘in the public interest’ mean?
As mentioned earlier, one of the requirements for an employee to qualify for whistle-blower protection is that they must have a reasonable belief that the disclosure is in the public interest. What exactly this means is a bit of a thorny issue as there is no definition of it in statute. Instead, it has been left to tribunals to decide.
From case law it seems that what amounts to a public interest belief is capable of being fairly wide so employers should be alert. For example, it has been held that a tribunal was wrong to dismiss a whistleblowing complaint at an early stage because the judge thought the employee had no prospects of successfully showing that she reasonably believed her complaint about her cramped working conditions was in the public interest.
6. Can employees blow the whistle to anyone other than their employer?
Yes. Whilst employees usually choose to blow the whistle to their employer as they are often best placed to remedy any wrongdoing, 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.
If you have an employment law matter you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.