Subjecting a worker to a detriment or dismissing an employee because they have made a protected disclosure (commonly known as whistleblowing) is unlawful. Any worker can bring a claim – this has been interpreted to include not only employees and casual workers but a member of an LLP. Employers are vicariously liable for the acts of their staff, so if colleagues subject workers to detriments because they have blown the whistle, that worker might successfully sue the employer unless they can show they took reasonable steps to prevent that behaviour. To be a protected disclosure, the worker must reasonably believe the disclosure to be in the public interest but this has been interpreted to include matters affecting the employee personally, such as in respect of their own health and safety or commission payments.
It is therefore sensible to have a Whistleblowing Policy, confirming that the employer encourages its staff to raise concerns and that action will be taken against those that victimise whistleblowers. It is important however to act on that policy: to take any disclosure of information seriously and to discipline anyone found to have victimised a whistleblower.
We can help you draft a Whistleblowing Policy, deal with a Grievance that a worker has been victimised because of whistleblowing or advise, assist and represent you in an Employment Tribunal claim arising out of whistleblowing. Our wealth of experience in dealing with these claims means that we can assess the merits of defending or settling the claim and, if appropriate, assist you in presenting a robust defence.
It is usually possible to agree a fixed fee to draft a Whistleblowing Policy or give unbundled advice about an allegation of victimisation. Where you want us to give open ended advice or represent you in proceedings, we will provide the best estimate we can and keep you fully informed about the costs you are likely to incur.
Contact us on 020 7935 3522, firstname.lastname@example.org or using the contact form
FAQs about Whistleblowing
What is whistleblowing?
To qualify for protection, a whistleblower must disclose information (i.e. not merely make an allegation) that in his/her reasonable belief is in the public interest and tends to show either that
A criminal offence has been committed, is being committed or is likely to be committed
A person has failed, is failing or is likely to fail to comply with a legal obligation
A miscarriage of justice has occurred, is occurring or is likely to occur
The health and safety of an individual has been, is being or is likely to be endangered
The environment has been, is being or is likely to be damaged
Or that information tending to show any of the above has been, is being or is likely to be deliberately concealed.
Who does whistleblowing legislation protect?
Any worker is protected from detriment on the ground s/he made a protected disclosure. Employees are protected from dismissal if the principal reason for dismissal was that s/he made a protected disclosure. Workers can include casual staff and some contractors who are otherwise treated as self-employed. A member of an LLP was found to be a worker for the purposes of whistleblowing legislation.
Are staff protected if they are whistleblowing for personal gain?
The motivation of staff is no longer relevant to whether or not a disclosure is a protected disclosure, though disclosures made in bad faith can result in reductions to compensation. Whistleblowing for personal gain can result in protection provided that the worker reasonably believed that the disclosure was in the public interest and it is made to his/her employer, in the course of obtaining legal advice or to a prescribed person. A salesman who whistleblew about accounting irregularities affecting his commission was found to be protected.
Is there a qualifying period for whistleblowing claims?
There is no need for qualifying service for a worker to be protected by whistleblowing legislation: an employee dismissed on day 1 will be unfairly dismissed if the principal reason was that s/he made a protected disclosure.
Are whistleblowers protected if they breach confidentiality?
Whistleblowing outside the employer organisation still attracts protection from victimisation if
It is to the person who has legal responsibility for the conduct about which the disclosure is made
It is made in the course of obtaining legal advice
It is to a “prescribed person” (i.e. relevant regulator)
Or the worker has already made a disclosure to the employer or a prescribed person or reasonably believes disclosure to his/her employer will result in a detriment or evidence being be destroyed, the disclosure is not made for personal gain and it is considered reasonable to disclose to that person. In this latter case, breach of confidentiality is a factor to be considered when deciding whether it is reasonable to disclose in the circumstances.