Legal

Has coronavirus caused a rise in protected disclosures?

27 Aug 2020 By Paida Dube

Whistleblowing for Covid-19 health and safety breaches is becoming a growing legal and reputational risk for employers, as Paida Dube explains

As more workplaces reopen after lockdown, and with the government now urging workers to return to the office, many people may be worried about their safety at work and that of their co-workers and customers. 

Where an employee believes their employer isn’t following government guidance or is putting health and safety at risk, the law provides specific whistleblowing protections. These provisions require employers to take all workplace risks or concerns raised by workers seriously, and to ensure the ‘whistleblower’ is not subject to unfavourable or detrimental treatment as a result of raising the issues.  

For employers, feedback from the frontline can be invaluable in ensuring working practices and behaviours are compliant, in the interests of personnel and customer safety.

Since failure to comply with health and safety legal obligations is a criminal offence and can result in damage to reputation, it is helpful for employers to approach whistleblowing as integral to an open and transparent culture that supports health and legal risk management.  

Legal protections for Covid-19 whistleblowers

The Public Interest Disclosure Act 1998 aims to ensure employees who report their employer’s negligence are protected from any form of detrimental 'backlash' from the employer. 

Employees can bring unfair dismissal claims, regardless of their length of service, as terminating the employment would be deemed automatically unfair. They may also be able to bring detriment claims for being treated less favourably as a result of making the disclosure. In both cases, there is no cap on the level of compensation that can be awarded by a tribunal. 

To be classed as a ‘protected disclosure’, and covered by the whistleblowing provisions, there must be a disclosure of information and the subject matter of that information must fall within one of six relevant failures: criminal offences, breaches of legal obligations, miscarriages of justice, danger to health and safety of any individual, damage to the environment and deliberately concealing the previously stated failures. 

The employee making the disclosure must also have a reasonable belief that the information relayed shows the relevant failure and such a disclosure will be in the public interest.

In the context of the pandemic, disclosures concerning potential or actual health and safety breaches related to Covid-19 are likely to be made in the public interest. 

A protected disclosure can be made during the employee’s employment or after the employment has ended. Where the employee makes a disclosure during a previous course of employment, they will continue to be protected from detriment by their current employer. 

Case law also potentially extends protection to disclosures relating to the actions of third parties, such as contractors who are not employed by the organisation. 

If an employer ignores or denies concerns raised by an employee, the employee may be able to escalate the matter to a senior manager or to the relevant external regulator, such as the Health and Safety Executive.

How to handle a protected disclosure relating to coronavirus

The primary sources of guidance in this area are the BEIS Whistleblowing: Guidance for Employers and Code of Practice and the Whistleblowing Commission's Whistleblowing Code of Practice.

Employers should have in place a whistleblowing policy that reflects the latest Covid-19 guidance and details the process for employees to follow to raise a concern.

Businesses should ensure they have open channels of communication with employees to allow disclosures to be made to the relevant individual, as identified in the organisation's whistleblowing policy.

There may be circumstances where it is more appropriate for the disclosure to be made to an external party, such as a regulator, professional body or an MP, as specified by the government in its list of prescribed people and bodies. 

While the employee can make their internal disclosure by telephone, in person or in writing, it is generally advisable that the disclosure is made in writing and be as detailed as possible to allow the employer to investigate fully. 

Details should outline the nature of the failure, those involved, dates and times where possible. Where a disclosure is made to a line manager, the line manager should promptly notify HR. 

A meeting should then be arranged as soon as possible with the employee, who should be advised of their right to be accompanied to the meeting by a colleague or a trade union representative. 

Any investigation will need to be completed within a ‘reasonable timeframe’, which would generally be defined within the policy. 

The BEIS guidance requires employers to provide feedback to the employee and such feedback should include an indication of timings for any actions or next steps.

Given the current challenges resulting from the pandemic, employers may struggle to adhere to their policies fully. For example, where named people under the policy are furloughed at the time of the disclosure, the employer should update the employee and provide alternative progression points. Likewise, where process delays are encountered, any additional time should be relayed to the employee. This will ensure they do not perceive matters to have stalled or that their concerns are being ignored.

Paida Dube is an employment law solicitor at DavidsonMorris

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