Whistleblowing: Legal Q&A

Last month, the Daily Mail highlighted the case of a community centre employee who was victimised after she exposed a colleague as a convicted sex offender who had won her whistleblowing claim.

Q What lessons can employers learn from this case?

A The case points out the importance of having proper policies and procedures for dealing with whistleblowers. Employers need to learn how to recognise when employees gain rights under whistleblowing legislation against detriment or dismissal. In whistleblowing situations, careful management will be required, which should include thorough investigation of the issues raised by the whistleblower.

Q Are employers required to introduce whistleblowing policies?

A The UK’s whistleblowing law is derived from the Public Interest Disclosure Act. This does not expressly oblige employers to introduce whistleblowing policies, but their introduction is best practice.

Some employers that operate in regulated sectors are under separate obligations regarding whistleblowing. London Stock Exchange-listed companies are subject to the requirements of the Combined Code on Corporate Governance, which requires arrangements to be in place for staff to raise concerns in confidence about financial reporting or other matters.

US-listed companies are subject to the Sarbanes-Oxley Act, and this also requires procedures for the raising of accounting concerns to be in place.

Q Why would we introduce a whistleblowing policy if we are not legally required to do so?

A There are all sorts of good practical reasons for employers to maintain whistleblowing policies. For example, by fostering a culture of openness and transparency, employers are more likely to root out any malpractice or wrongdoing and so protect themselves against reputational and financial loss.

Effective policies and procedures are also the best protection against whistleblowing claims, since they will emphasise that genuinely held concerns will be thoroughly investigated, and that those who speak up will be protected against victimisation or dismissal as a result.

Aside from the legal costs and wasted management time involved, whistleblowing claims can result in high awards of compensation. There is no limit on the compensation that employment tribunals can award. Depending on the circumstances of the case, the tribunal may be able to make an injury to feelings award, as well as financial compensation.

The majority of claims settle on confidential terms, but there have been a series of high-profile cases involving six-figure compensation. The Prison Service was ordered to pay almost £500,000 to an employee who alleged that there had been serious wrongdoing in Wakefield Prison (Mrs C P Lingard v HM Prison Service).

Q What does the legislation cover?

A Danger to the health and safety of any individual is one of the six categories of malpractice that the legislation specifically mentions. The others are criminal offences, breach of any legal obligation that has been held to include (in Parkins v Sodexho) a breach of the whistleblower’s own contract of employment, miscarriages of justice, damage to the environment, and the deliberate concealing of information about any of these. Disclosures about such matters may qualify for protection.

Q Who do whistleblowing rights apply to?

A Whistleblowing rights apply more widely than many other employment rights. Workers, and not only employees, are covered by the law, while certain groups – including agency workers – are specifically protected.

Q So what should we do if a worker is victimised for raising a genuine concern?

A Those involved should be warned that the victimisation of a genuine whistleblower is potentially a serious disciplinary offence, not least because it could expose the organisation to a claim by the whistleblower. The whistleblower should be offered extra support.

Q What if unfounded allegations are made maliciously?

A The raising of untrue allegations maliciously is also a serious disciplinary offence, and this should be explained in a whistleblowing policy and/or your disciplinary procedure. If you need to discipline a worker in such circumstances, be particularly careful to check that you have a good record of a thorough investigation showing that the employee made up their allegations for improper motives. Ensure that you follow the statutory dismissal and disciplinary procedure, as well as your own internal procedures.

By Andreas White, employment solicitor, Kingsley Napley


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