What protection does the law give to whistleblowers?22.06.2013
There is no financial cap on compensation in whistleblowing claims, and no requirement for a minimum period of service.
Two levels of protection exist for whistleblowers:
Unfair dismissal. Dismissing an employee will be automatically unfair if the reason, or main reason, is that they have made a “protected disclosure”.
Unlawful detriment. Workers are protected from being subject to any detriment on the grounds that they have made a “protected disclosure”. A detriment includes threats; disciplinary action; loss of work or pay or damage to career prospects.
Who is a worker?
The definition of a “worker” is wide and includes agency workers, freelance workers, seconded workers and trainees.
When is a disclosure protected?
The information disclosed must, in the reasonable belief of the worker, tend to show that one of the following has taken place, is taking place or is likely to take place:
• A criminal offence.
• Breach of any legal obligation.
• Miscarriage of justice.
• Danger to the health and safety of an individual.
• Damage to the environment.
• The deliberate concealing of information about any of the above.
Recent changes have now defined qualifying disclosures as being those, “in the public interest.” There are also several distinctions between valid internal and external disclosures.
Why is protection of whistleblowers important?
Internal risk control
Businesses have an interest in uncovering wrongdoing or dangerous practices within their organisation. A business is likely to want to manage what information (if any) is spread to the outside world. Encouraging the reporting of these types of issues through internal channels may help avoid:
• Serious accidents.
• Regulatory breaches.
Whistleblowing cases can involve significant management time and legal costs, which are not usually recoverable.
Reputational damage and staff morale
An external disclosure of suspected malpractice, especially to the media, can lead to negative publicity for the business and damage staff morale. Any claim by a whistleblower who believes they have suffered reprisals is likely to have a similar effect.
Avoiding criminal liability
A business will be guilty of failing to prevent bribery if a person associated with it (for example, an employee) bribes another person with the intention of obtaining or retaining business or a business advantage. A business will have a defence if it can show that the business had “adequate procedures” in place to prevent bribery. The government has published guidance indicating that this would include having effective whistleblowing procedures in place that encourage the reporting of bribery.
Practical steps to help reduce business risk
• Implement a whistleblowing policy that enables staff to confidentially report concerns about:
- unethical; or
- otherwise unacceptable conduct.
Ensure that it enables the worker to bypass the level of management where the problem exists.
• Publicise the policy internally and train any managers on it. Make it clear that victimisation of a whistleblower will lead to disciplinary action.
• Investigate disclosures promptly and keep the whistleblower informed of progress where possible. A lack of contact with the whistleblower may lead them to make an external disclosure.
• Do not rely on confidentiality clauses to prevent external disclosures, as they are unenforceable if the disclosure is protected. Taking action against a whistleblower for breach of confidence may amount to an unlawful detriment.