Whistleblowing and the protection afforded to those who whistleblow is vital. For an employer it is important to uncover dangerous practices or wrongdoing in the workplace. For a worker it is important that they understand they are protected against reprisals from other members of staff should they report an incident or practice. The protections afforded by whistleblowing legislation are designed to encourage workers to have the confidence to come forward.
Should an individual believe that they have suffered a detriment as a result of reporting workplace malpractice they may wish to bring a claim.
In order to be afforded the protection of the legislation, an individual must be a worker (i.e. not self employed) and must show there was a ‘qualifying disclosure’, and that it was a ‘protected disclosure’.
- What is a qualifying disclosure?
The information disclosed must be more than a mere allegation or a statement, it must convey facts. A disclosure can be made verbally or in writing.
The information disclosed by the whistleblower to their employer (or to an outside party in exceptional circumstances), must be in relation to events they reasonably believe are occurring, have occurred or are likely to occur in the future, and must relate to:
- A criminal offence;
- Breach of any legal obligation;
- A miscarriage of justice;
- Danger to the health and safety of any individual;
- Damage to the environment; or
- The deliberate concealing of information about any of the above.
- What is a protected disclosure?
Generally, in order for a disclosure to be protected it should be made to the individual’s employer. However there are certain circumstances where the disclosure will be protected if disclosed to one of the following:
- Responsible third parties – an individual can report to a third party without informing their employer if they reasonably believe that a third party (such as a client or supplier) is responsible for the wrongdoing.
- Prescribed persons – the law lists “prescribed persons” to whom disclosures can be made, without the individual informing their employer if they believe the information is substantially true and concerns a matter within that prescribed person’s area of responsibility. These include: HMRC, the Health and Safety Executive and the Office of Fair Trading.
- Government ministers – if the individual is employed by a person or body appointed under statute, they can report information to the relevant minister.
- Legal advisers – matters can be disclosed to legal advisers in the course of obtaining advice.
- Wider disclosure – disclosure to anyone else is only protected if the whistleblower acts reasonably, believes the information is substantially true, acts in good faith, and not for gain. Unless the matter is “exceptionally serious”, the whistleblower must have already disclosed it to their employer or a prescribed person, or believe that, if they do, evidence would be destroyed or they would suffer reprisals.
What protection is given to whistleblowers?
It is unlawful to subject any worker to a detriment (including threats, disciplinary action, loss of work or pay, or damage to career prospects) because they have made a protected disclosure. If an individual is dismissed (including by reason of redundancy) following a disclosure, a claim under whistleblowing legislation is a real risk. For an employer, it is worth considering this, and if appropriate, addressing the situation in advance of any dismissal to minimise risk. If you have made a protected disclosure and have subsequently been dismissed or made redundant as a result, the dismissal or redundancy will automatically be unfair and you may be entitled to bring a claim to the Employment Tribunal. There is no financial cap on compensation that can be awarded in whistleblowing claims, and no requirement for a minimum period of service.
Whistleblowing Policy
A whistleblowing policy is a crucial component of an organisation’s commitment to transparency, ethical behavior, and accountability. This policy provides a formal mechanism for employees to report concerns about illegal or unethical practices within the organization without fear of retaliation. Such concerns might include fraud, corruption, environmental damage, health and safety violations, or breaches of company policies. A well-crafted whistleblowing policy encourages employees to speak up, thereby helping the organisation to identify and address issues early, which can prevent more significant problems and promote a culture of integrity.
The whistleblowing policy should clearly outline the procedures for reporting concerns. It should specify who can report (usually all employees, contractors, and even third parties), what types of issues can be reported, and the channels available for making a report. These channels might include direct reporting to a designated whistleblowing officer, an anonymous hotline, or an online reporting system. The policy should also detail the steps the organisation will take to investigate the reported concerns, ensuring that all reports are treated seriously and investigated thoroughly and impartially.
Protection for whistleblowers is a fundamental aspect of an effective policy. The policy must guarantee that individuals who report concerns in good faith will not face any form of retaliation, such as dismissal, demotion, harassment, or discrimination. This protection not only complies with legal requirements but also reassures employees that they can raise concerns without fear of negative consequences. The policy should also outline the confidentiality measures in place to protect the identity of whistleblowers, as well as any circumstances under which confidentiality might be legally overridden.
Training and awareness are essential to the successful implementation of a whistleblowing policy. Employees should be regularly trained on how to recognize and report unethical or illegal behavior and understand the protections afforded to them under the policy. Employers should also promote the policy through regular communications, ensuring that all members of the organization are aware of the reporting channels and the importance of whistleblowing. By fostering an environment where employees feel safe and supported in reporting concerns, organizations can proactively address potential issues and maintain high standards of ethical conduct.
In summary, a whistleblowing policy is a vital tool for promoting ethical behavior and accountability within an organization. It provides a clear framework for reporting and addressing concerns, protects whistleblowers from retaliation, and helps maintain a culture of integrity and transparency. By implementing and actively promoting a robust whistleblowing policy, organizations can identify and rectify problems early, ensuring compliance with legal and ethical standards and fostering a positive workplace environment.
