Legal

How to get your whistleblowing policy right

3 Apr 2018 By Jonathan Maude

Following the #MeToo movement and the abuse revelations emerging from Oxfam and the world of football, now is the time for employers to ensure they have an effective whistleblowing framework in place. Jonathan Maude reports

Leaving aside the catastrophic brand and reputational damage that revelations can cause, the ever-increasing regulatory environment can trap the unwary employer. In addition, there has been a 100 per cent rise in employment tribunal claims in the last year, following the abolition of issue fees. Add to this that there is no cap on compensation for whistleblowing claims – for example, an award of £1.2m was made in Watkinson v Royal Cornwall Hospitals NHS Trust – and there is no question that these are turbulent times for employers.

The Public Interest Disclosure Act 1998 provides protection for workers reporting malpractice by their employers or third parties. The Act creates two levels of protection for whistleblowers:

The dismissal of an employee will be automatically unfair if the reason, or principal reason, for their dismissal is that they have made a ‘protected disclosure’.

Workers should not be subjected to any detriment ‘on the ground’ that they have made a protected disclosure. Any disclosure needs to be both ‘qualifying’ and ‘protected’.

Qualifying

To qualify as a whistleblower the individual should be a ‘qualifying worker’. The Public Interest Disclosure Act uses a wider definition of ‘worker’ than is used for many other employment rights and covers a number of individuals who would not otherwise be covered, including contractors, agency staff and NHS practitioners. 

The qualifying worker must make a disclosure of ‘information’. Merely gathering evidence or threatening to make a disclosure is not sufficient. The disclosure must be made on one of the following grounds, which shows one or more of the following has happened, or is likely to happen: 

  • A criminal offence
  • A breach of legal obligation
  • A miscarriage of justice
  • A danger to the health and safety of any individual
  • A danger to the environment
  • Deliberately concealing any of the above

The qualifying worker must have a reasonable belief that the information tends to show one of these failures and that the disclosure is in the public interest. 

Protected disclosures

For the disclosure to be ‘protected’ it needs to be made to any of the following entities: 

  • The employer
  • An authorised third party (if the employer has a whistleblowing hotline)
  • A minister of the Crown (and the individual is employed in a government organisation)
  • A ‘prescribed person’ (named by order or a member of a regulatory authority where the matter falls within their remit)
  • A legal adviser in the course of taking legal advice 

There is a possibility of wider disclosure, including in the media, if certain prescribed conditions are met, but these are strict. Employers should make sure workers do not feel compelled to take their concerns elsewhere. 

For an employer to have an effective whistleblowing regime, it needs to foster a culture where staff feel safe to make disclosures. Management needs to buy in to the process, the whistleblowing policy needs to be clearly set out avoiding legalistic language, and it should be a ‘live’ document that is promoted internally, and easily accessible.

There must be a defined procedure for reporting (for example, allowing a worker to bypass the level of management where the problem may exist) and relevant training should be provided on both how to handle and make disclosures. The whistleblower needs to be safeguarded and supported, and staff should be made aware that any victimisation will lead to disciplinary action. 

Employers need to review and implement policies now to avoid being another in an ever-increasing line of high-profile businesses that have been subject to unwanted headlines.

Jonathan Maude is a partner at Vedder Price and chair of the UK/EU Employment Law Committee

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