27 Jun 2022

Employment

Whistleblowing – what is it, what rights do whistle blowers have and what are the employer’s responsibilities?

The need to improve the UK’s whistleblowing laws has hit the headlines again recently with Sue Gray’s report into government gatherings during lockdown concluding that ‘some staff wanted to raise concerns about behaviours they witnessed at work but at times felt unable to do so’. Our head of employment law, Dan Wilde, examines why this is such an important issue.

Whistleblowing has become an increasingly important part of the employment law landscape, particularly in the health and financial services sectors, with the number of whistleblowing claims reaching record levels over the last two years.

What is a whistle blower?

A worker who reports certain types of wrongdoing at work is known as a whistle blower. The wrongdoing that they disclose must be in the public interest, rather than just affecting themselves, for example:

  • a criminal offence, such as fraud
  • someone’s health and safety being in danger
  • risk or actual damage to the environment
  • a miscarriage of justice
  • the company is breaking the law, for example does not have the right insurance
  • you believe someone is covering up wrongdoing

Personal grievances (for example bullying, harassment, discrimination) are not covered by whistleblowing law, unless the particular case is also raised in the public interest.

The most common type of whistleblowing is in relation to a failure to comply with a legal obligation, for example, an employee of a bank raising concerns that their employer is not complying with the rules of the Financial Conduct Authority. There has also been an increase in disclosures regarding health and safety matters since the start of the pandemic, for example, appropriate measures being put in place before employees were required to return to the workplace.

Are whistle blowers protected by law?

UK law has granted protection for those who raise concerns of potential wrongdoing in the workplace since 1999 through the Public Interest Disclosure Act 1998. This provides the right for a worker to take a case to an employment tribunal if they have been victimised in work or if they have lost their job because they have ‘blown the whistle’.

Anyone who has a concern about an incident that happened in the past, is happening now, or that they believe will happen in the near future, should be able to raise it at any time without fear of being treated unfairly or losing their job.

If an employee is dismissed because they have made a “protected disclosure” – or in other words, blown the whistle – that dismissal is automatically unfair. Those who are not employees are protected from being subjected to detrimental treatment as a result of whistleblowing.

Unlike ordinary unfair dismissal cases, employees do not require 2 years’ service and the compensation in a whistleblowing case is potentially unlimited.

Who is protected?

You are protected if you are any of the following types of worker:

  • an employee
  • a trainee
  • an agency worker
  • a member of a Limited Liability Partnership (LLP)

There is no minimum service requirement in order to bring a whistleblowing claim (protection is a ‘day one right’) and, unlike in standard unfair dismissal claims, there is no cap on the amount of compensation that may be awarded.

If you are not sure whether you are protected, it is worth getting independent advice from a specialist employment lawyer. It’s also worth remembering that a confidentiality clause or ‘gagging clause’ in a settlement agreement is not valid if you’re a whistle blower.

Why are there calls for the UK to reform its whistleblowing laws?

There have been repeated calls for the UK to improve and extend whistle blower protection and make it mandatory for companies to have a whistleblowing policy. According to Kevin Hollinrake MP, ‘some 43% of all financial crime is identified by whistle blowers, so proper whistleblowing protection is absolutely critical’.

A recent survey carried out by Protect (the UK whistleblowing charity) suggested that only 12% of whistleblowing cases are successful and the charity argues that ‘urgent reform is needed to reflect the modern workplace and keep pace with international best practice’.

Having left the EU, the UK will not be implementing the EU Whistleblowing Directive, which has already been passed into national law by several member states. A key tenet of that directive is the setting up of a competent national authority to provide a source of education, training and support for whistle blowers.

All sides of the political spectrum have recognised the danger to society of UK law falling behind on this matter. An all-party parliamentary group on whistleblowing has supported the reintroduction of Baroness Kramer’s Private Members Bill which had its second reading on 6 May.  If enacted, the bill would establish the Independent Office of the Whistleblower, to support and advise whistle blowers before they raise concerns. Currently, employees and workers are only protected from victimisation once they have either suffered detriment or been dismissed.

Other proposals for reform include protection of a wider scope of persons, including those who support and facilitate whistle blowers, specialist tribunals to consider all forms of whistleblowing, and fines for perpetrators, as well as aggravated damages and compensation for those whose cases are successful.

So what can employers do?

In the UK there is no legal requirement for an organisation to have a whistleblowing policy although under Corporate Governance Code, listed companies must have whistleblowing policies in place or must explain why they do not.

Employers are under increasing pressure to act responsibly. While we wait for the anticipated legislative reform, business leaders should be putting in place foundations for a supportive culture that will allow concerns to be appropriately raised and addressed for the benefit of the whole organisation.

With the number of whistleblowing complaints likely to keep increasing, the overall objective for any employer must be that its people feel able to speak up if they are concerned about wrongdoing, safe in the knowledge that their concerns will be taken seriously and they will not be ignored, side-lined or dismissed.

Get in touch

Our employment law experts are able to offer specialist advice on a wide range of issues, for employees and employers alike. For a confidential conversation, please contact Daniel Wilde on 01633 244233 or email wilded@hevans.com

 

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