Employers and managers do not always realise when a troublesome employee is a whistleblower. It is easy to feel a false sense of security that an employee with fewer than two years’ service (the qualifying period for an ordinary unfair dismissal claim) and no obvious discrimination claims can be dismissed without any significant problems or liabilities. However, where there is a valid whistleblowing claim, length of service is not a bar to bringing a claim in an employment tribunal and there is no statutory cap on damages that can be awarded, as there is in ordinary unfair dismissal cases.
Whistleblowing can often be wrapped up in grievances or raised during meetings and presentations that include general allegations or facts not relating to perceived wrongdoing. Also, because UK whistleblowing legislation and case law is quite complex, not everyone is fully aware of their rights and obligations in this area.
Although every case will turn on its own facts, here are signs a worker is a whistleblower:
- The worker has raised concerns in writing or verbally to the employer (or other third party in more limited circumstances). The concerns do not need to be raised in any formal way; a comment in a chance encounter at the coffee machine may be enough.
- The concerns raised include information that relates to one or more of the following: a breach of any legal obligation (including breach of regulatory obligations); a criminal offence; miscarriages of justice; danger to the health and safety of any individual; damage to the environment; and/or the deliberate concealing of any of the above.
- Breach of any legal obligation is one of the most frequently raised concerns, and it can include concerns regarding the employer, another employee or a third party and matters that have occurred in the past or present, or that are considered likely to occur in the future.
- The worker needs to have a reasonable belief that the information disclosed tends to show one of the relevant failures; ie breach of legal obligation.
- The worker needs to reasonably believe that the disclosure was made in the public interest. This is a fairly low threshold test based on recent case law.
- There needs to be a causal link between any disadvantage (detriment) suffered and/or dismissal and the whistleblowing. This is often the area of the greatest challenge in whistleblowing cases.
- Whistleblowing no longer needs to be in ‘good faith’. Therefore, workers could have financial or vexatious motives for blowing the whistle and this would not be a bar to their claims. However, any compensation awarded can be reduced by 25 per cent if a tribunal finds there was bad faith.
What can employers do to reduce the risk?
- Have a clear whistleblowing policy in place, coupled with clear and thorough training on the policy, so that people understand the way in which to raise their concerns and managers can better identify potential whistleblowing and know how to deal with it.
- Where practicable, implement a whistleblowing hotline and/or appoint a whistleblowing officer at a senior level to investigate and deal with concerns raised as soon as possible.
- Be on alert for concerns raised by workers that suggest any form of wrongdoing, and seek legal advice early before matters escalate out of your control and ensure best practice is followed.
- In regulated sectors, be particularly sensitive to any information provided by workers that may suggest any regulatory breaches. This means that managers need to be fully aware and up to date on all relevant regulatory obligations.
- If an employer has a fair reason to dismiss an employee who is or may be considered a whistleblower, ensure a fair procedure is followed. This includes a reasonable investigation being carried out and well documented reasons for dismissal that are communicated to the employee and are not because of the employee’s potential whistleblowing.
- There may be cases where the manner in which an employee blows the whistle or the wrongdoing is also connected with their own wrongdoing. Such cases need to be handled carefully and you should seek legal advice as soon as possible.
- Do not assume that if someone has fewer than two years’ service and no obvious ‘protected characteristics’ they do not have a potentially serious employment law claim.
Whistleblowing can help organisations improve and root out hidden problems. Although the knee-jerk reaction may be to cast off a whistleblower as a ‘troublemaker’ and a waste of management time, a more open-minded approach is advisable. They may be raising valid concerns that can help the organisation enormously, as well as helping it to avoid legal pitfalls.
Don’t necessarily expect to hear anything like a shrill blast from an official brandishing a yellow card. Whistleblowing can often arise in a seemingly day-to-day email.
Natasha Koshnitsky is a senior associate at Kingsley Napley