A Quick Guide to Whistleblowing

“Whistleblowing” is a term many of us may have heard in passing before, however, the legal connotation to this word is often unknown. For someone to whistleblow they are disclosing wrongdoing they have witnessed or know of within an organisation and this is commonly referred to as ‘blowing the whistle’. An individual is considered a whistleblower if they are a worker and report certain types of wrongdoing (this will usually be something they will have witnessed at work – though this is not always the case).

The disclosure of the ‘wrongdoing’ must be made in the public interest, meaning that it must affect other people and not just the individual disclosing this.

Types of Whistleblowing

Whistleblowing can take various forms and examples of qualifying disclosures of information can include reporting any of the following:

  • A criminal offence;
  • Danger to health and safety;
  • The breach of a legal obligation;
  • Non-compliance with the law (failure to comply with any legal obligation or regulatory requirement);
  • Risk of, or actual, environmental damage;
  • A miscarriage of justice; or
  • The belief that somebody is covering up wrongdoing (eg a deliberate attempt to hide any of the above).

Is It Whistleblowing?

For the above to qualify as whistleblowing;

  • You must reasonably believe that one or more of the above-listed matters are either currently happening or is likely to take place in the future.
  • You must provide information and not merely make a statement or allegation in order for it to be qualifying.

An important point to note is that the act of whistleblowing should not be misconstrued with personal grievances for example bullying, harassment and discrimination, as this is unlikely to be covered under whistleblowing law unless the case is considered in the public interest or it demonstrates a real danger to the workforce.

Workers who knowingly make false allegations are not only not protected by the law but are also likely to face disciplinary action from their employer.  An Employment Tribunal will also have the power to reduce any compensation by up to 25% if they think the disclosure was made in “bad faith”. This reduces the chances of someone being due to any compensation when they whistleblow only in retaliation for dismissal or discriminatory allegations.

How to Correctly ‘Whistleblow’

  1. A disclosure of wrongdoing should be made to your employer and if this cannot be done, then you should contact a prescribed person or body. There is a list of prescribed persons and bodies, as detailed by the UK government
  2. Following up any verbal protected disclosures in writing so that you have a paper trail of exactly what information has been provided as the difficulty in many cases is that they are only communicated verbally and over time individual’s disclosing any wrongdoing may forget the exact wording used and on this basis, it can be denied by the receiving party.
  3. Provide as much information as possible. Simply making an allegation is unlikely to be sufficient

What are the advantages and disadvantages of whistleblowing?

Advantages:

  • Exposing Unethical Behaviour

Perhaps the biggest advantage of becoming a whistleblower is knowing you have made the right choice, namely by doing the right thing. This is because whistleblowing can have a ripple effect which can bring about positive changes within a business. Just look at the #MeToo movement and the ripple effect that a few brave women’s stories had on the world and the culture we live it. 

  • Legal Protection

If you become a whistleblower you are protected by the law which means you should not be subject to a detriment as a result.

NOTE –  if your employer dismisses you, this is also automatically considered ‘unfair’ if it is fully or partly due to a qualifying disclosure of information which means you can add a claim of automatic unfair dismissal to any whilst blowing complaint, regardless of your length of service.

Time limit – If you bring a claim you must do so within 3 months from the detriment.  This could mean bringing a claim when still employed if you are not dismissed.

Disadvantages:

  • Employer’s Reputational Damage

As an employer the disadvantage of an employee whistleblowing can be that it may cause reputational damage if it becomes public knowledge, this is especially the case if it is escalated onto an Employment Tribunal, as judgements are now published for public knowledge online and all hearings are of course public. As such, this can reflect badly on an employer’s integrity and brand and may harm profitability.

  • Employee’s Reputational Damage

As an employee, if you choose to become a whistleblower it may affect your relationships with your co-workers and employer as they may see your actions as a betrayal and may not want to interact with you anymore. Commonly, existing employees may be angry at whistle-blowers, as they are putting the reputation and financial future of their employer on the line.

Our Experience with Whistleblowing in The Workplace

We recently represented Ms Linda Fairhall, who successfully challenged her employer’s decision to unfairly dismiss her. She was found to have made thirteen protected disclosures regarding concerns for patient safety due to increasing workloads and a decreasing workforce, in relation to many staff being off work sick and on stress leave. To see the blog we recently did on this and to read more on this case in relation to whistleblowing, please click here.

How can Thrive help?

If you are concerned or think you may have a whistleblowing case and don’t know what to do, please contact us and we will be more than happy to help!

If you are an employer and you are concerned someone may have whistleblown, please get in touch for your free initial assessment, moving forward we may be able to advise you on how to deal with this issue properly to minimise the risk of any claim and the consequential adverse publicity that can follow now that all Employment Tribunal judgements are published online.

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