There are undoubtedly many challenges facing employers at the moment and these will of course vary sector by sector and business by business but one area that all employers should be alert to is whistleblowing.
Broadly speaking, whistleblowing is the raising of a concern, usually to the employer, about a danger, risk, malpractice or wrongdoing. As many employees may be worried about coronavirus and safety at work, it’s likely that some employers may experience an increase in the number of employees who ‘blow the whistle’, particularly in relation to what they believe to be issues in relation to health and safety / legal obligations.
It’s important for employers to be able to recognise whistleblowing, not only so the matters raised can be dealt with appropriately, but also because an employee who has blown the whistle has the right not to be dismissed for doing so or be subjected to any other detriment, such as having disciplinary action taken against them. This is the case no matter how short a time an employee may have been employed. If an employee is treated unlawfully because they have blown the whistle, there is no limit on the amount they can be awarded by an employment tribunal, this makes it a potentially powerful claim for employees.
So, what are some of the key facts when it comes to 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.
- 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 and the deliberate concealing of information about any of the aforementioned. It’s important to bear in mind that these categories are very wide so managers should be alert to any matters raised by an employee that could relate to these areas.
- 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 – this will be assessed from the employee’s perspective. It should also be borne in mind that the employee doesn’t have to be disclosing new information, they can be drawing an employer’s attention to a matter of which they are already aware.
- Employees must also 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 it in statute. Instead, it has been left to tribunals to decide. However, it is not difficult to imagine that disclosures concerning potential or actual health and safety breaches related to coronavirus could be found to meet this test.
- 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 an employee in your organisation raises any concerns or complaints, it’s important to seek advice on the facts of your situation before taking action. If you would like advice on any employment law matter, please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.