Following the publication of data by whistleblowing advice service Protect, that revealed one in four COVID-19 whistle-blowers who contacted its advice line were dismissed between September 2020 and March 2021, the government has said that they will be reviewing whistleblowing protections.
Whilst we don’t yet know the scope and timing of the review, it’s important that employers are aware of how whistleblowing works and what protection whistle-blowers have in the workplace to avoid falling foul of the current law.
Here are five fast facts that employers may find helpful to know:
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.
Managers should be alert as there are different ways employees can blow the whistle, for example, it could be done verbally or by email or letter.
What are the types of wrongdoing?
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.
It’s important for employers to bear in mind that these categories are very wide and that employees can still have whistle-blower 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.
What is the public interest element?
One of the ‘ingredients’ needed for a whistle-blower’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. Instead, it has been left to tribunals to decide. 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 had an adverse effect on commission income for over 100 senior managers, including himself.
Who do employees blow the whistle to?
Employees will usually choose to blow the whistle to their employer as they 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. Kingfisher Professional Services Ltd can provide further information on this if required.
What protection do whistle-blowers have?
It is 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.
It’s important to bear in mind that employees are also protected from employers taking detrimental action against them short of dismissal because they have blown the whistle, such as disciplining them, demoting them or not paying a bonus they would otherwise have been given.
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.
Find out more about whistleblowing in the workplace here.