Whistleblowing – law and best practice
There have been a number of high profile cases of whistleblowing which have tested the protection extended to those workers who report instances of wrongdoing.
There are a number of positives to being alerted to incidents of malpractice as it may help avert reputational damage and huge legal and financial ramifications.
Those who “blow the whistle” are protected by law if they can meet certain requirements.
Firstly, the person making the disclosure must be a worker. This covers employees, apprentices, trainees and agency workers, but it excludes self-employed contractors
Secondly, they must reasonably believe they are acting in the public interest. This is not defined in the law, but it means the disclosure must have an impact on other people and not be a personal grievance, for example, they are being bullied.
Thirdly, the worker must have a reasonable belief that the information disclosed tends to demonstrate past, present or likely future wrongdoing of the following nature:
- Criminal offence
- A breach of a legal obligation
- Risk to someone’s health and safety
- Miscarriages of justice
- Damage to the environment
- That someone is covering up or concealing the wrongdoing in any of the areas stated above.
The disclosure should be made to the employer. If the worker does not want to report it to the employer, they may be able to make the disclosure to a prescribed person or body, which will depend on the type of wrongdoing or nature of the business. For example, if the worker is blowing the whistle due to witnessing malpractice in a care home, they may make the disclosure to Safeguarding or to the Care Quality Commission.
Typically, if a worker decides to bypass informing their employer and go to the press, it is likely that they will lose their legal protections.
Workers can submit a claim to an Employment Tribunal if they have been treated unfairly for reporting the wrongdoing.
Employees can claim unfair dismissal if they have been dismissed or selected for redundancy as a result of blowing the whistle, regardless of their length of service.
The law does not require you to have a whistleblowing policy in place, but it is highly advisable to do so. Having a clear and robust policy shows a willingness to listen to workers and encourages them to raise any issues internally. It allows you to have a framework for investigation and remedy any problems that have been indentified by the whistleblower.
The policy will vary according to the employer’s size and resources and the nature of the organisation, but it should state what whistleblowing is, describe the way in which workers can make disclosures and explain how it will be acted upon.
The contents of the policy should be in writing and be found in a reasonably accessible place, such as the Employee Handbook.
Everyone at the workplace needs to know about what the policy means for them. This is why training should be given to managers so that they know how to deal with any disclosures made in a fair and consistent way. You should also give your workers training so they are aware of the policy and know how to make a disclosure.
When a disclosure is received, it should not be ignored. You will need to investigate the disclosure and hold a meeting with the whistleblower to understand the exact nature of the malpractice or wrongdoing.
Whistleblowing cases can be very complex, therefore you should seek advice at the earliest opportunity. If you do not have a policy in place, your Ellis Whittam Employment Law Adviser will be able to help you develop one.