Legal Q&A… whistleblowers

Q What does the whistleblower law do?

A The legislation protects workers against dismissal or detriment for having ‘blown the whistle’. ‘Worker’ has an unusually wide definition and covers employees, agency workers and many independent contractors.

Q What form does the protection take?

A If an employee is dismissed and can show that the sole or principal reason for the dismissal was that they blew the whistle, that dismissal is automatically unfair and the employee is entitled to compensation for all financial loss arising.

Unusually for unfair dismissal cases, there is no cap on this compensation. If a worker suffers some other detriment as a result of blowing the whistle, they can claim compensation for financial loss as well as compensation for injury to feelings (between £500 and £25,000). This can be raised if the employer has behaved particularly badly. This non-economic compensation is not available in unfair dismissal cases so dismissed whistleblowers tend to claim unlawful detriment as well as unfair dismissal.

Q How long does protection against detriment last?

A In the recent case of Woodward v Abbey National plc, the Court of Appeal brought the whistleblowing laws in line with the discrimination laws by establishing that protection against detriment extends indefinitely. Mrs Woodward claimed that, as a result of blowing the whistle before her employment with Abbey National ended in 1994, she continued to suffer detriment as late as 2002. The bank must defend the case on the merits; the case would not be thrown out simply because the alleged detriment took place post-employment.

Q What does ‘blowing the whistle’ mean?

A It means simply ‘making a protected disclosure’. The legislation is drafted very broadly and far more disclosures are protected than employers realise. The most commonly relied on qualifying disclosures relate to ‘commission of a criminal offence’ or ‘failure to comply with a legal obligation’. The latter category includes complaints about breach of an employment contract, and whether the breach is of an express term (such as a duty to abide by an equal opportunities policy) or of an implied term (such as the duty of trust and confidence).

To benefit from protection, the qualifying disclosure must be made to the correct person and it may have to meet a number of conditions. Disclosures can be made orally, but the well-advised worker will make disclosures in writing.

Disclosures to ‘the employer’ have the fewest conditions so workers are encouraged to blow the whistle internally rather than externally. The legislation does not attempt to identify a particular individual within the employer to whom the disclosure must be made. However, to ensure protection, individuals should make their disclosures to more senior staff with express or implied authority over them (eg, their line manager or a senior member of the HR team). The most significant condition attached to internal disclosures is that they must be made ‘in good faith’. If public interest is not the primary motive, then the disclosure is unlikely to be in good faith.

Q How can employers protect against spurious whistleblowing claims?

A Produce and circulate a whistleblowing policy that clearly sets out how (including to whom) matters of general concern should be reported. Although workers can raise concerns in a different manner, it is likely to be more difficult for individuals to progress their claims if they have flouted the employer’s procedures.

Wherever possible, ensure that concerns raised by workers are properly investigated and appropriate conclusions are reached.

Ensure that the reasons for important decisions (especially dismissals and disciplinary action) are well thought through and documented. The hardest claims to defend are those where the employer has acted in an inconsistent manner and has not kept a paper trail that shows its actions are justified.

More employees are willing to blow the whistle