Guide to whistleblowing at work

Whistleblowing is the action someone takes to report wrongdoing in the public interest. This guide considers protection for whistleblowers in the work place.

By law whistleblowers are protected from:

• unfair dismissal – if someone is dismissed for whistleblowing, it will be treated as an automatic unfair dismissal; and
• Detriment means someone experiences one or both of the following because they made a disclosure:

The following could all amount to detriments:

• Reduced hours
• bullying
• harassment
• demotion

People are still protected from detriments even if they no longer work for the employer they're making a disclosure about.

For example, an employee would still be protected if their previous employer gave an inaccurate job reference because of whistleblowing.

Whether a whistleblower qualifies for protection depends on them satisfying the following tests:

Have they made a qualifying disclosure? There are a number of requirements to be a qualifying disclosure (section 43B, ERA 1996):

• Disclosure of information The worker must make a disclosure of information conveying factual information. Merely raising a concern or allegation is insufficient. For example, if an employee alleges "health and safety breaches" without providing specific examples that might not be a disclosure of information. However, courts are not pedantic regarding this requirement. If it was obvious from the context what the employee meant by "health and safety breaches" the courts might well accept that there was sufficient factual information.
• Subject matter The disclosure must be about one of the following:

1. Criminal offences
2. Breach of any legal obligation
3. Miscarriages of justice
4. Danger to the health and safety of any individual
5. Damage to the environment
6. The deliberate concealing of information about any of the above

• Reasonable belief The worker must have a reasonable belief that the information tends to show one of the relevant failures. As long as the worker believes that the relevant failure has occurred or is likely to occur and their belief is, in the tribunal's view, reasonable, it does not matter if the belief was incorrect.
• In the public interest The worker must have a reasonable belief that the disclosure is in the public interest. A breach of an employee's own contract of employment could be a breach of a legal obligation under the whistleblowing legislation. It might also be in the public interest to disclose a breach of their contract if it also affects a large group of other employees or if it impacts on clients or service users of the Company.
• Is the qualifying disclosure protected? The disclosure must also be a protected disclosure, which broadly depends on the identity of the person to whom the disclosure is made. A disclosure to an employer would always be protected provided the other criteria listed above has been met.

Employment Tribunal complaints

Claimants will often include complaints about whistleblowing alongside other complaints. There are several advantages in doing so:

• If Claimants succeed with a claim that they have suffered a detriment due to whistleblowing, then unlike unfair dismissal, they can claim for an award in respect of injury to feelings.
• In cases of ‘ordinary’ unfair dismissal, the compensatory award is subject to a statutory maximum, currently whichever is the lower of a year’s pay or £105,707. However, in the case of dismissal by reason of the employee having made a protected disclosure the limit does not apply.
• The protection against dismissal by reason of making a protected disclosure is available to all employees regardless of their length of service.

In practice it can be difficult for employees to succeed with a whistleblowing claim. Claims will often fall at the first hurdle, by failing to establish that a qualifying disclosure was made. Some of the most common reasons for a Tribunal finding that a disclosure does not qualify include:

• Failure to provide specific information in the disclosure;
• Lack of a reasonable belief that the disclosure is in the public interest;
• Failure to establish that the disclosure related to the qualifying subject matter;
• Lack of a reasonable belief that the information shows one of the qualifying matters occurred or is likely to occur; and
• Lack of evidence that a verbal disclosure was made.

However, even if a Claimant succeeds in showing that a disclosure was made and qualifies for protection, claims will often fail on the grounds that the Claimant has failed to prove that the disclosure caused the dismissal or detriment.

We chose a random sample of twenty Employment Tribunal decisions and found that only 30% of the claims (six claims) succeeded. Of the 14 claims that failed 8 (57%) fell at the first hurdle by failing to establish that a qualifying disclosure was made. It doesn't necessarily follow that whistleblowing protection is inadequate. Claimants will often bring whistleblowing claims alongside other types of claim. Due to the potential uplift in compensation it will often make sense to include whistleblowing as a claim even if the facts do not strongly support such a claim.

Protect, a charity providing support to whistleblowers has lobbied for protection of whistleblowers to be strengthened. During 2023 the Government launched a review of protection for whistleblowers. As part of this review the Government will consider whether the existing framework provides sufficient protection to whistleblowers. The results of this review are set to be announced toward the end of 2023.

Where a claim does succeed a Claimant can be awarded a high level of compensation. For example the sum of £1,112,956.17 was awarded to the Claimant in the case of Banerjee v Royal Bank of Canada. In that case the Claimant’s activities were regulated by the Financial Conduct Authority. The Claimant was required to operate in accordance with the Principles for Business, which placed binding requirements on the Clamant and other staff. The Claimant had concerns about the internal compliance procedures that mirrored these provisions, as he felt that it created a box-ticking culture, whereby staff were scanning through policies without really absorbing the information. The Employment Tribunal decided that this was a qualifying disclosure and that the reason for dismissal was a pretext, the real reason being the whistleblowing.

Given the potential liability associated with whistleblowing, and a concern to protect genuine whistleblowers, most employers obtain a policy setting out how they will deal with whistleblowing. Should you require guidance on dealing with a whistleblowing disclosure that you have received our team of experienced employment lawyers are on hand to assist.

CONTACT US

If you need guidance on any of the above matters, we are here to help.  Please do not hesitate to contact Martin Cornforth on 01636 558343, or email: martin.cornforth@chattertons.com.