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Are your whistleblowing policies and procedures effective and up-to-date?

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Whistleblowing legislation offers statutory protection for certain categories of individuals who have made a qualifying disclosure be this during their current employment or employment with their previous employer or after their employment has ended.

The Public Interest Disclosure Act 19918 and certain sections of the Employment Rights Act 1996, provide protection against dismissal and victimisation.

Let's recap on the key principles:

Who is covered?

  • Employees
  • Workers (including agency workers, homeworkers, self-employed doctors and police officers),
  • Employee shareholders
  • LLP Members

What is a Protected Disclosure?

There are certain requirements that must be met for a disclosure to be a qualifying disclosure.

The Employment Tribunal must be satisfied that the Claimant made a disclosure of information that relates to one of the six types of relevant failures. But also, that the Claimant had a reasonable belief that the wrongdoing amounted of one of the relevant failures and that they reasonably believed the disclosure was in the public interest.  

 

Types of Claims

There are 3 potential claims that can be pursued at the Employment Tribunal in cases where a Claimant believes they have been treated wrongly treated:

  1. Unfair Dismissal – If the disclosure was the reason or main reason for a dismissal or constructive dismissal, the dismissal will be automatically unfair. Compensation for automatic unfair dismissal in whistleblowing claims is uncapped. Also note, it can be uplifted by up to 25% in certain cases for failure to follow the ACAS Code on disciplinary and grievances matters.
  2. Detriment Claims – There is no statutory definition of a detriment so its meaning has a wide application. Any negative treatment or victimisation that occurs because the Claimant made a protected disclosure with the covered. An injury to feelings award will be made and the level will reflect how bad the treatment was.
  3. Interim Relief – There is a strict 7 day time limit from the date of termination for a Claimant to apply for interim relief on the basis that their case has good prospects of success. If granted, the employer will be required to pay the Claimant's full wages until the final hearing.
Lingard v HM Prison Service ET/1802862/04
Emma Howie, an employee of the Prison Service, gave evidence in a disciplinary hearing. By speaking out, her colleagues labelled her a "grass" and began to victimise her. Ms Howie explained to the Leeds Employment Tribunal that a wreath was delivered to her at work, grass cuttings were sent in the post and a colleague spat at her two-year-old son. Mrs Lingard won her claim of unfair dismissal against the Prison Service and was awarded £500,000, which is believed to be the largest public sector pay out for whistleblowing.

 

Effective Whistleblowing Policies

Offering protection to whistleblowers and ensuring they feel safe about raising concerns of wrongdoing in the workplace, is of paramount importance. Effective polices and adequate training will promote openness and transparency and thereby encourage individuals to raise concerns and not feel frightened in doing so. Further, this will enable an employer to manage issues internally to avoid matters escalating or where litigation is inevitable, help the employer demonstrate the reasonable steps defence.

Providing regular training and policy reminders, demonstrates both your commitment to protecting whistleblowers and the consequences an individual faces in acting in breach of the policy. A policy should dovetail other key policies such as bribery, anti-bullying and harassment to establish your collective promise to promoting a working environment that is supportive and free from inappropriate behaviours of any form.

As the statutory protection extends beyond employees to different workers and LLP members, it isn’t enough to just issue a policy and deliver training to employees only. We recommend your policy is issued to all relevant individuals at the start of their contract with some form of training be it in person or online and for this to be repeated at least annually. Too often is a policy issues on induction and then forgot about – training is key.

CONTACT US

If you are an employer who needs guidance on whistleblowing matters or putting a policy or training in place, we are here to help.  Please do not hesitate to contact our friendly Employment Law team on 01205 351114 or 01636 593505.

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