Whistleblowing, or ‘making a disclosure in the public interest’, is when a worker reveals information about a wrongdoing or illegal activity within an organisation that may affect others such as the general public. This is usually to do with the actions of senior management or other staff, but could also involve customers or suppliers.
As an employer, the best way to encourage workers to raise concerns internally rather than ‘blowing the whistle’ externally is to encourage an open and supportive company culture and create a detailed whistleblowing policy.
Encouraging a culture where concerns are reported internally at an early stage makes it easier for management to address those concerns and avoid more serious regulatory breaches or reputational damage.
Whistleblowing or grievance?
There’s often confusion as to whether a complaint counts as an employee grievance or as an instance of whistleblowing. The general rule is that a grievance will be a situation affecting the worker personally, for example complaining about a colleague’s behaviour.
In contrast, a whistleblowing complaint would usually disclose a concern that would have a negative impact on the wider public. We tend to see it in the financial sector, for example if an employee is concerned that another member of staff is giving improper or inaccurate advice to clients.
To be classed as whistleblowing, the information disclosed must satisfy the following requirements:
1. It must be perceived to be in the public interest; and
2. It must be a ‘qualifying disclosure’, which means the whistleblower has to expose an illegal activity of some sort. This could include:
- criminal activity;
- miscarriages of justice;
- danger to health and safety;
- damage to the environment;
- failure to comply with a legal obligation.
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Whistleblowing in UK law
The key piece of UK legislation on whistleblowing is the Public Interest Disclosure Act (PIDA) 1998. PIDA gives whistleblowers protection from dismissal and victimisation, even if they signed a non-disclosure agreement with their company.
To get protection, the individual must be classed as a worker for the company, be making a qualifying disclosure and follow the correct process. This involves making the disclosure to their employer in good faith, or through another channel that the employer has authorised.
Individuals who are dismissed for ‘blowing the whistle’ can take their employer to an employment tribunal without having completed 2 years’ service.
Although not a legal requirement, it’s always best practice to create a whistleblowing policy for your business. This will help you to manage the process and train managers in how to deal with instances of whistleblowing.
Good sections to include in your whistleblowing policy are:
- An explanation of what whistleblowing is
- Instructions on how employees should raise concerns, e.g. to their manager, or if that’s not possible then to a person in senior management
- A reassurance that any concerns raised will be treated fairly and as confidentially as possible
- What the investigation and possible outcomes of disclosures will look like
- A suggested time frame for the process
- A reassurance that protection and support will be provided for qualifying whistleblowers.
If a worker within your company wants to blow the whistle, they should approach the person specified within the whistleblowing policy. This person should reassure the individual that the disclosure won’t affect their job in any way.
It’s important to note that in August 2019 the Employment Appeal Tribunal ruled that whistleblowers don’t need to use precise legal terms when disclosing information.
Once the whistleblower has made their information known, a meeting can be arranged to better understand the situation. The individual should be told that they can bring along a trade union representative or colleague if they wish.
Use the meeting to ask questions and gather as much relevant information as possible – this should be recorded, and a copy given to the employee afterwards. Give an idea of expected outcomes and timescales for when the employee will be updated.
In some cases, the issue may be resolved within the meeting if both parties are happy with the solution. However, in other cases you may need to perform a full and thorough investigation.
Be sure to keep the whistleblower in the loop about how their disclosure is being dealt with. If the individual sees you as committed to resolving the issue, it will make them less likely to approach external bodies with their complaint, and less likely to take the case to an employment tribunal.
What happens if a whistleblower is wrong?
If it turns out that the worker was mistaken about the information they disclosed, they’ll still be protected if they reasonably believed it to be true at the time.
Usually employees with less than 2 years’ service can’t claim unfair dismissal, but in cases of whistleblowing protection they can. This means a small proportion of employees may fabricate a case of whistleblowing in order to receive compensation.
However, if a tribunal finds a whistleblower to have been acting in bad faith, they can reduce the amount of compensation the employer has to pay to them by 25%.
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If a worker has raised concerns about some aspect of your business and you’re not sure of your obligations as an employer, our HR consultants can help.
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29th Nov 2019