Legal Q&A: Whistleblowers

Whistleblowing has been under the media spotlight recently as a result of proposals to increase the Financial Services Authority’s (FSA) powers to offer protection to whistleblowers. This article explains the protection given to whistleblowers and looks at the implications of the recent developments.

Q What is whistleblowing?

A Whistleblowing is when a worker discloses wrong-doing by their employer in certain situations, such as cases of unethical behaviour. Whistleblowers are protected by the Public Interest Disclosure Act 1998.

Q What are the requirements for a disclosure to be ‘protected’?

A First, the individual making the disclosure must have a reasonable belief that it is true and it must relate to one of the following:

  • a criminal offence
  • a failure to comply with a legal obligation
  • a miscarriage of justice
  • the endangering of an individual’s health and safety
  • damaging the environment
  • or concealing information in relation to any of the above.

Second, the disclosure must broadly be made in one of the following ways:

  • to the employer
  • in good faith, to a prescribed body such as the FSA, HM Revenue and Customs or the Health and Safety Executive
  • or in the course of obtaining legal advice
  • in certain circumstances to a government minister or
  • external disclosure – for example, to the police.

Although this appears to be a catch-all provision, the circumstances in which it will operate are very tightly regulated. The disclosure must be made in good faith, not for personal gain and must be reasonable in all the circumstances.

Q What protection is given?

A A worker who has made a protected disclosure is able to bring a claim if they have suffered a detriment as a result of this. An employee who has been dismissed because of the disclosure can also bring an unfair dismissal claim and is not required to have one year’s service. Crucially, compensation is not capped.

Q Does the legislation protect an employee who goes directly to the media to blow the whistle?

A Given that to achieve protection the disclosure must be raised in a responsible way, disclosures to the media will only receive protected status in the most extreme circumstances. Certainly the rule of thumb is that such disclosures will not be protected.

Q Can employers enter into a compromise agreement or include confidentiality provisions within an employment contract to prevent a worker from whistleblowing?

A No, such agreements cannot circumvent the whistleblowing provisions.

Q Can private disputes between employer and employee form the basis of a whistleblowing claim?

A Common sense would suggest not, as the legislation was introduced to be applicable to disclosures in the public interest. However, case law has determined that the disclosure need not be in the public interest, such as where the disclosure concerns a breach of the whistleblower’s own contract of employment. The effect of this is to create a free-standing right for an individual to bring a victimisation complaint if they have blown the whistle in relation to the way they have personally been treated rather than facts or situations affecting other employees, third parties or the public at large. This goes far beyond public interest and cannot be what the legislation was intended to protect. That said, until such time as this principle is overruled, employers need to be aware of the potential pitfalls.

Q What should employers do?

A Employers should ensure they have a clear and comprehensive whistleblowing policy in place. As long as the concerns of workers are treated seriously and dealt with properly, it will be more likely that a worker will raise issues or concerns internally and therefore it will be more difficult for a worker to obtain protected status for an external disclosure that may damage the employer’s reputation.

The whistleblowing policy should as a minimum:

  • make a clear statement that malpractice will be taken seriously and that allegations will be dealt with seriously, quickly and confidentially
  • state that internal procedures should be followed except in exceptional circumstances
  • give clear procedures to report suspicions or evidence of malpractice, including to whom to report, at a level that bypasses the problem
  • give details of the procedures the employer will follow to investigate disclosures
  • make clear what the penalties are, if any, for making unfounded or malicious disclosures.

By adhering to these criteria, employers will be able to protect themselves from the risk of a potentially costly claim.

Martin Warren, head of employment law. Eversheds.

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