Employment law- Whistleblowing
What is whistleblowing?
Whistleblowing arises where you bring information about a wrongdoing to the attention of your employer or a relevant organisation, This is commonly referred to as ‘blowing the whistle’ and it is more formally known as ‘making a disclosure in the public interest’. The relevant legislation appears in the Public Interest Disclosure Act 1998.
Unhelpfully, what amounts to a “public interest” is not defined in the legislation and so it is left to the courts and tribunals to lead the way with their interpretation.
Who does the law protect?
You are protected as an employee, but also as a worker , which includes freelancers, agency staff, and directors. The categories of workers who are protected is very wide.
What is a protected disclosure?
To qualify for protection, you must have a reasonable belief that a wrongdoing has occurred, or is likely to incur, and that it is not in the public interest. It is not necessary for the wrongdoing to have actually occurred. To qualify as a protected disclosure, it needs to relate to certain subject matters, namely;
- a criminal offence;
- a breach of legal obligation;
- a miscarriage of justice;
- a danger to health and safety of an individual;
- damage to the environment or related to a deliberate attempt to conceal any of these matters;
- that information relating to any of the above has been or is likely to be deliberately concealed.
The protection includes where there has been widespread behavior by colleagues and managers even though it is considered to be acceptable practice by the organisation for which you work.
How do you make a protected disclosure?
If you need to make a disclosure status with a protected disclosure, the following are the general steps that you need to consider:-
- Does your employer have a whistle-blowing policy? If so, you should follow the process if possible.
- Make the disclosure to your employer, unless there is good reason not to. If you believe your employer will either cover it up, treat you unfairly if you complained, or they have not addressed the issue after your having already notified them, then you can make the disclosure to a “prescribed person” who are independent to your employers.
- Keep a written note at all times as evidence of your disclosure and to whom. This includes where you are making the initial disclosure in writing.
What protection do you have?
If you blow the whistle, you have protection from being unfairly dismissed if this is as a result of your making a protected disclosure -and there is no qualifying period of employment required to gain such protection. There is also no maximum cap on a tribunal award if you win your case.
You will also have protection if you are “victimised” once you have made a disclosure. This includes being ignored, being subject to unreasonable scrutiny, demotion, or being set unreasonable targets. It also includes if you were selected for redundancy because of the protected disclosure. The onus is on your employer to prove that you did not suffer a detriment due to the disclosure, and that it was because of another reason, such as your performance or conduct.
There are important time limits in making a claim, which is usually 3 months less one day from the date of the act complained of (although you can have a situation where there is a continuing course of conduct by your employer, in which case the time limit will only run from the end of that period).
If a case goes to a tribunal and the tribunal thinks the disclosure was made in bad faith (for example, if the disclosure is not made with honest motives and/or where it is made for personal gain), the tribunal will have the power to reduce your compensation by up to 25%
In summary, you will have to show three things to claim protection:
- that you made a qualifying disclosure and had reasonable belief in doing so;
- that you followed the correct disclosure procedure;
- that you were dismissed or suffered a detriment as a result of making the disclosure.
In 2015, the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) introduced new rules which were designed to strengthen the protections afforded by the whistleblowing legislation. These sanctions apply to all UK-incorporated banks, building societies, credit unions and investment banks and came into effect on the 7th of September 2016. Click here to access our blog on the new rules.