Whistleblowing – where are we now?

We take a look at the current protection for workers under the whistleblowing protection

The Employment Rights Act prohibits dismissal or detrimental treatment because a worker has raised a protected and qualified disclosure.

In order for a worker to gain protection, they need to have made a protected and qualified disclosure which must include:

  • A disclosure of information
  • A reasonable belief that one of the following areas of malpractice has, or is or is likely to take place:
    1. Criminal offence
    2. Breach of any legal obligation
    3. Miscarriages of justice
    4. Danger to the health and safety of any individual
    5. Damage to the environment
    6. Deliberately concealing any of the information above.
  • The disclosure is in the public interest
  • The disclosure normally needs to be made internally to the employer but sometimes disclosures to certain third parties can be protected.

Now that the disclosure needs to be in the ‘public interest’ it has reduced the possibility of a worker being able to claim that a breach of their contractual terms would be able to be a qualifying disclosure because it is a breach of any legal obligation, as listed above. It does not mean that it is impossible for a worker to rely on this, but it certainly makes it more difficult to show that such a disclosure is in the public interest.

Like with many other areas of employment law, employers are vicariously liable for those actions carried out by their workers and employees and it has recently been clarified in the case of Timis that fellow workers can also be held personally liable if they breach the whistleblowing provisions. This mirrors the situation with discrimination law where workers can be held liable for discriminatory conduct too and highlights the importance of matters such as policies and training for staff on their potential liability and what they should and should not do.

Since the qualifying service for normal unfair dismissal was increased to 2 years in 2012, it is not perhaps surprising that potential claimants look to other areas of employment law for protection. Whistleblowing, like discrimination, does not require 2 years service in order to bring a claim.

In order to reduce potential claims within the business, and to potentially avoid vicarious liability, it is advisable for employers to do the following:

  • Introduce a whistleblowing policy
  • Train staff on how to deal with whistleblowing in the work place
  • Fostering an open and approachable culture so that staff feel able to raise concerns.

If an employer carries out the above, it could assist a possible defence for vicarious liability to show that it took all reasonable steps to prevent detrimental treatment.

Whistleblowing is a complex area of law and we are able to assist further should you need any assistance. Please do contact Linda Wilson at LSW@macdonaldoates.co.uk

 

The contents of this article are for the purposes of general awareness only.  They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.