Although, understandably, an organisation may feel aggrieved if an employee takes it upon themselves to anonymously leak concerns or information about their employer’s activities, the act of whistleblowing is very often a sign that something isn’t quite right within the workplace.
People ‘blowing the whistle’ are undertaking what is legally known as a ‘protected disclosure’ under the whistleblowing legislation within the Employment Rights Act 1996. Differentiating between a dissatisfied employee with a personal grievance and someone with legitimate concerns making a protected disclosure is vital.
Personal grievances are usually only of interest to the aggrieved party, while a protected disclosure identifies significant issues that either could or already have, impacted the wider population.
Protected disclosures generally refer to at least one of the following offences: criminal activity; non-compliance with legal obligations; health and safety violations; environment damage; or the deliberate concealment of any such matters.
Sometimes, an individual may truly believe they are whistleblowing, when in reality they have a personal grievance, such as having different ideologies to their employers which they may find upsetting. Equally, what may at first glance appear to be a personal grievance could qualify as a protected disclosure upon further investigation.
Once the whistle has been blown
Businesses should establish a working environment where all employees feel empowered to report their concerns, safe in the knowledge that they will be taken seriously, and that their grievances will be tackled appropriately.
The existence of workplace whistleblowing policies should be well communicated. Simply knowing that such a framework is in place can often be enough to encourage workers to come forward earlier and keep the matter internal.
Anyone seen to be victimising whistleblowers for making a protected disclosure will be subject to disciplinary action, so this must also be clear within all HR policies. Should a whistleblower feel that they have been victimised, even if there is no evidence to support their concerns upon thorough investigation, it could result in a claim for detriment.
Additionally, if a whistleblower’s employment is terminated as a result of them raising their concerns, they will have cause for automatic unfair dismissal, irrespective of how many years’ service they have given.
However, if it is determined that a disclosure was malicious in intent, employers may wish to take disciplinary action against the whistleblower.
Handle with care
The seriousness of whistleblowing should not be underestimated and it requires comprehensive investigation. Whistleblowing is not an act that’s undertaken lightly, so those making a disclosure should be offered the opportunity to explain why they felt it was their only option. It is likely to be an incredibly stressful time for them, so they may need support through all investigative meetings from either a colleague or a trade union representative.
The result of investigative action should be reported directly to the whistleblower when complete, alongside an in-depth overview of all corrective measures that will be taken.
If the disclosure does raise legitimate red flags that could well result in legal action, businesses should respond proportionately and with legal counsel, taking any necessary disciplinary action urgently and reporting details to the appropriate regulatory bodies.
Be aware that attempts made to silence employees making a protected disclosure via a settlement or non-disclosure agreement are inadvisable and could result in detriment claims.
If a business does not react correctly following a protected disclosure being made, the whistleblower has the right to report the problem directly to the appropriate authorities themselves. They may also choose to go straight to the press, which can have major reputational repercussions for an employer. If in any doubt about the next steps, employers should seek specialist legal advice, but are advised not to act in haste, whatever else may happen.
Alec Colson is a partner and head of employment law at Taylor Walton