Whilst it might be understandable that organisations feel wronged if an anonymous employee leaks concerns or information about their employer’s activities, whistleblowing is often an indication that something is wrong in the workplace.
Facebook whistleblower Frances Haugen has recently put the practice back in the headlines once again, but do most businesses know what exactly is meant by the term whistleblowing? And how should they respond if someone in their ranks chooses to make their grievances public? Here we take a closer look:
‘Whistleblowing’ is formally referred to as making a ‘protected disclosure’ under the whistleblowing legislation contained in the Employment Rights Act 1996. It is important to distinguish the difference between a personal grievance made by a disgruntled employee, and ‘protected disclosure’ made by a concerned individual. A grievance is a matter of personal interest, whereas whistleblowing recognises serious concerns likely to impact the wider public.
A ‘protected disclosure’ is the dissemination of information reasonably believed to be in the public’s interest, involving at least one of the following issues; criminal offences, failure to comply with legal obligations, health and safety violations, environmental damage, or the deliberate covering up of any of these matters.
Occasionally an individual will claim to be whistleblowing about a work-related issue, when it’s actually a personal grievance, like having views or beliefs at odds with the organisation, which whilst lawful, are personally upsetting. But sometimes, what may appear to be a personal grievance at first could still amount to a protected disclosure after all.
The following recent cases detail the complexity of the legal test that applies to protected disclosures:
In the case of Martin v. London Borough of Southwark, a teacher brought a claim after he believed he suffered detriment after sharing concerns that teachers at the school were working more hours than the statutory limit. He sent emails to the headteacher and school governors, outlining his concerns. However, the Employment Tribunal (ET) in dismissing his claim, decided his disclosures were not protected, as they were not in the public interest.
On appeal, the Employment Appeal Tribunal (EAT) rejected the ET’s reasoning, arguing it had focused on the claimant’s motives when it should have considered whether the claimant believed the disclosure was in the public interest and whether a legal obligation had been breached.
Determining the ET had not applied the correct tests and directing that a fresh tribunal be heard, the EAT found that a whistle-blower can reasonably believe their disclosure is in the public interest, even if their motive is predominantly self-serving.
In the case of Secure Care UK Limited v. Mr R Mott, the claimant had been employed for three months as a logistics manager until he was made redundant along with two colleagues. During his short employment, Mr Mott made nine protected disclosures to Secure Care UK Limited, relating to its breach of a statutory obligation and endangering the health and safety of workers. Mr Mott claimed he was made redundant because of these protected disclosures and the ET upheld his claim concerning three of these, recognising a ‘material influence’ over his selection for redundancy and dismissal by Secure Care UK Limited, which appealed the decision.
The EAT found in favour of Secure Care UK Limited, arguing the ET had applied the wrong test when considering the reason for dismissal was whistleblowing. The ET should have considered if any of the disclosures were the principal reason for dismissal, rather than whether the protected disclosure influenced the decision to dismiss.
Organisations should develop a transparent and safe working environment, in which employees at every level, feel able to highlight their legitimate concerns and have them addressed appropriately. Developing a whistleblowing policy can encourage workers to keep issues internal and allow the organisation opportunity to address fears without undue publicity. It is also important to make everyone within an organisation aware that victimisation of whistleblowers is a disciplinary offence and that this information is clear throughout all HR documentation.
If whistleblowers feel they have been victimised it could lead to a claim for detriment. Furthermore, if they are dismissed for making a ‘protected disclosure’ it will be an automatic unfair dismissal, and the employee is not required to have two years’ service to bring a claim as they would for an ordinary claim.
How organisations handle whistleblowing could ultimately influence both reputational damage and any financial impact. It must be taken seriously and investigated thoroughly. Individuals making the disclosure should be interviewed and given the opportunity to explain their reasons for whistleblowing. Most individuals will not have taken this action lightly, so it’s best practice to allow them to be supported either by a colleague or a trade union representative at all meetings. When the investigation is complete, the results should be shared with the whistle-blower, explaining all curative measures being applied. Even if there is no supporting evidence for their claims, the individual mustn’t be victimised for their actions. However, if it is determined that the disclosure was malicious in intent, an employer may consider taking disciplinary action.
If a disclosure raises legitimate concerns, organisations must respond proportionately and liaise directly with any appropriate regulatory bodies, being seen to make any necessary disciplinary decisions concerning any employees identified in the disclosure. Please note that any attempt to silence an employee in relation to protected disclosures through a settlement or any other kind of agreement is not legally enforceable and could lead to detriment claims.
If someone believes they have raised a genuine concern in a protected disclosure and their employer does not respond correctly, an individual can report the matter directly to the appropriate authorities. In rare circumstances, a whistleblower will go straight to the media, and that can have catastrophic reputational repercussions, so inaction is not an option. Businesses need to take whistleblowing seriously, seek expert legal advice, and whatever happens, not act in haste.
About the Author: Alec Colson is a Partner and Head of Employment Law at Luton-headquartered law firm Taylor Walton. He specialises in Employment and Industrial Relations Law, advising commercial and public sector clients on all aspects of employment law. Alec has a particular expertise in discrimination law and regularly provides training on Employment Law and HR matters.
About the firm: Taylor Walton is a renowned regional law firm, with more than 150 dedicated professionals, working from offices in Luton, St Albans and Harpenden, providing for businesses and individuals a full range of legal services, including Employment, Commercial Litigation, Professional Negligence, Corporate & Commercial, Commercial Real Estate, Residential Conveyancing, Private Client and Family Law.