Weekly dilemma: Whistleblowing

I was shocked this morning to see a newspaper article alleging that my company’s factory is littered with health and safety breaches. The source in the article is an employee who has previously complained about the same issues. I was unhappy with this but didn’t have time to deal with it at the time. I want to sack her – where do I stand?

There are a number of reasons why you might want to tread carefully when considering taking action against this employee. You may not agree with the way the employee has behaved, but it is important that you put all emotion to one side.

First, the Public Interest Disclosure Act 1998 (inserting provisions within the Employment Rights Act 1996 (ERA)) provides protection from dismissal or other detriment for an employee who “whistleblows” on an employer he or she suspects is guilty of bad practice.

In order to attract protection your employee must satisfy a number of rules. In brief:

  • her disclosure must be a “qualifying disclosure”, meaning that the complaint raises a matter which fits within one of the categories specified, for example that the health or safety of any individual has been, is being or is likely to be endangered;
  • that at the time of making the disclosure she reasonably believed that the matters that she was raising were true; and
  • that her disclosure was made in a certain way – for example to her employer or another “responsible person” under the ERA – so that it becomes a “protected disclosure”.

Your employee is, therefore, likely to be protected under the whistleblowing legislation.

Second, the ERA also protects your employee from suffering a detriment and from being dismissed unfairly because she has brought harmful or potentially harmful circumstances connected with work to your attention. You should also note that there is no service requirement for an unfair dismissal claim where the reason for dismissal is that the employee has made a protected disclosure and, if well founded, the compensation for such a claim is unlimited.

Third, you could be missing the point. Employees should feel comfortable raising health and safety concerns with you without fear of reprisal. The Health and Safety at Work Act 1974 imposes a duty on employers to provide and maintain a safe environment at work and there are consequences for any failure. So it is in your best interests to investigate the concerns promptly and deal with any hazards, should they exist.

Finally, you may be tempted to argue that, by approaching the local newspaper, the employee is guilty of misconduct or has breached the implied term of trust and confidence between and employer and the employee. It would, however, be a brave employer indeed that dismisses for that reason in these circumstances, particularly before having investigated the complaints (not that they need to be true) and given that she has raised them with you previously. You would certainly need to hold strong evidence suggesting that the matters were raised in bad faith.

Clearly, this employee has concerns and you should discuss them with her. An open and frank discussion will ensure that you fully understand her worries and show that you are taking the matter seriously. Hopefully, she will then feel less inclined to go to a third party (such as the Health and Safety Executive) about these issues in the future.

You may wish to reaffirm your stance on whistleblowing to all staff and are well advised to have a policy in place so that all employees know what to do should they be concerned about a certain practice or policy within the business. They will also be confident that the company will not take a dim view for having raised the matter. Managers should be trained in how to deal with complaints to ensure that these are dealt with promptly and do not get missed or ignored.

Scott Withers, associate solicitor, employment team, Weightmans LLP

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