Whilst headlines about whistleblowing tend to focus on NHS workers exposing dangerous practices or steps taken to encourage those working in financial services to do more to highlight illegality, legislation protecting whistleblowers is wide enough to affect any organisation.
It is not just employees who are protected: casual workers and agency workers are covered, as is a member in an LLP. Despite efforts to bring the focus back to “public interest” disclosures, Tribunals are extending protection to workers who complain about matters affecting themselves, provided that they have at least the potential to affect others as well.
So for example, the Employment Appeal Tribunal has held that a complaint about cramped working conditions could amount to a protected disclosure as the employee might think it is not just in their own interest but the interest of others working at the organisation. Similar findings have been made about changes to contractual terms and commission payments.
It is easy to see, therefore, that any organisation might receive a complaint that could amount to whistleblowing. All organisations should therefore be aware of the protections available to whistleblowers, essentially not to suffer any “detriment” or be dismissed because they have blown the whistle.
Whistleblowers are protected whatever the truth or otherwise of the subject of their complaint, provided that they had a “reasonable belief” in its content. They are protected even if the complaint is made in bad faith, though this should affect the amount of compensation they receive.
Our advice is to tread carefully on receipt of complaints about contractual terms, health and safety or other wrongdoing. If in doubt, seek advice about whether the content could amount to whistleblowing before taking any steps that might be considered a “detriment”. This could cover anything from allocating fewer shifts to a casual worker to failing to promote an employee. Organisations are also “vicariously liable” for their employees, so a worker who is isolated or faces censure after highlighting wrongdoing within the workplace might have a claim against an employer who does nothing to stamp that out.
However, it is important not to act too defensively, as otherwise workers might feel untouchable if they make complaints. Proper disciplinary action can be taken against whistleblowers provided it is not because they are whistleblowers.
The first step in protecting the organisation is to have a good Whistleblowing Policy, making it clear that the organisation welcomes criticism and feedback and will support whistleblowers. It should also make clear that disciplinary action will be taken against those that victimise whistleblowers. But like anything, a policy alone will not protect the organisation if it is not followed.
We can help with
- Drafting a Whistleblowing Policy
- Taking disciplinary action against those victimising whistleblowers
- Dealing with problem employees who are also whistleblowers
- Tribunal claims arising from whistleblowing
Contact Louise Taft on 020 7935 3522 or firstname.lastname@example.org if you have any questions about whistleblowing.
Whatever your personal circumstances the above is only a guide and we would advise you to contact us to obtain definitive advice as you will appreciate that each person’s circumstances are unique to them.