The protection under employment law
The ITV drama, Mr Bates vs The Post Office, catapulted into the public consciousness the plight of the hundreds of sub-postmasters who were convicted of ‘fiddling the books’ due to a faulty accounting software system. But, the series also highlighted the critical importance of a whistleblower who played a key role in exposing the gross miscarriage of justice. It was an engineer at Fujitsu, the company at the heart of the scandal which developed the faulty Horizon system, who featured in a BBC Panorama documentary in 2015 that uncovered the truth and ultimately led to the postmasters’ successful legal challenge in 2019.
What is a whistleblower?
If you are a worker and you report some sort of transgression that you will usually have seen at work, you are likely to be classed as a whistleblower, and are protected by whistleblowing measures in the Employment Rights Act 1996 (as amended by the Public Interest Disclosure Act 1998). To get this protection, however, the disclosure you make must be:
- in the public interest (ie, it affects the general public);
- made in good faith (ie, without malice);
- one you reasonably believe to be substantially true; and
- made to the right person or body (see below).
You can raise concerns about wrongdoing that has happened in the past, is happening now, or you believe will happen in the future, and you have the legal right not to suffer a detriment or to be sacked just because you blew the whistle. If this happens, you can consider pursuing an action through an employment tribunal. Detriments you may suffer include, your employer reducing your hours, bullying or harassing you, being passed over for promotion, being excluded from team meetings, or having a request for training rejected for no good reason. If it is established that you were fired for whistleblowing, an employment tribunal will treat the termination as an automatic unfair dismissal.
You usually have three months from the date of the dismissal or detrimental treatment to make a claim to an employment tribunal, so taking urgent action is important.
Who is protected?
You are only afforded whistleblowing protection if you are a ‘worker’, such as:
- an employee (for example, an office or factory worker, an NHS employee, or a police officer);
- an agency worker;
- an apprentice or trainee;
- a self-employed NHS doctor, dentist, ophthalmologist or pharmacist; or
- a member of a limited liability partnership.
If an employer tries to preclude you from making a disclosure by including a confidentiality clause within a contract of employment or within the terms of an settlement agreement, such clauses would be invalid if you are a whistleblower.
Who is not protected?
People who are not usually protected by this law include:
- the genuinely self-employed;
- members of the armed forces;
- volunteers without an enforceable employment contract;
- non-executive directors;
- lawyers who learn about a problem covered by professional privilege; or
- a Crown employee dealing with national security.
The EU Whistleblowing Directive extended the protection afforded to whistleblowers to self-employed contractors, volunteers, non-executive directors and job applicants, as ‘facilitators’ who assist the whistleblower in the whistleblowing process (such as family members and workmates).
Since Brexit, the UK was not obliged to implement this new law and thus far has not done so, meaning that if you fall into an unprotected category and made a disclosure you could face dismissal from your role. This shortfall in protection has led to campaigns from pressure groups, such as Protect, for the law to strengthened to also protect these groups.
It may be possible for people in this unprotected category to register their fears through their organisation’s safeguarding or grievance procedure, without having recourse to the same legal protection.
Many employers, however, have a policy that allows you to make a disclosure to them even if you do not qualify as a protected whistleblower, as many employers genuinely want to hear about any problems and resolve them. If this is the case, you should make a disclosure in line with the process outlined in the firm or company’s policy.
What you can and cannot report
If you are a ‘worker’, you are protected by law if you report ‘qualifying’ issues such as:
- criminal offences (for example, fraud);
- people’s health and safety being endangered;
- environmental risks or damage;
- miscarriages of justice; or
- someone covering up wrongdoing.
You are not covered by whistleblowing law if you report something that amounts to a personal grievance, such as discrimination, bullying or harassment, unless the disclosure is also in the public interest.
You would also not be protected if you obtained access to the disclosed information by illegal means, such as by hacking.
Who can you disclose to?
The people and bodies you should make a disclosure to under the Act include:
your employer;
- a legal advisor;
- a government minister (if you work for a statutory body);
- a ‘prescribed person or body’ (such as a regulator, commissioner, or government body); or
- someone else responsible for the wrongdoing (such as a contractor company you have been working with).
In cases of ‘exceptionally serious failure’, however, you can disclose to any other person or body – such as the media or police – if there is a good reason to do so. This was the case in the Post Office scandal. If you want to’ blow the whistle’, you should consider carefully with whom you should make the disclosure. You can talk to a legal adviser at any stage of the process, but otherwise it is good practice to consider the list above in order. You are allowed to skip someone on the list, but you may have to justify this if the case goes to an employment tribunal.
Moving to someone further down the list may be justifiable if, for example, other people at work have been threatened for making a previous disclosure, or if your employer refuses to address your concerns.
How to make a disclosure
If you are making a disclosure to your employer, you should follow the organisation’s whistleblowing procedure, if it has one. Although a disclosure can be made verbally, it is always a good idea to also raise the concerns in writing. This would mean tat you would then have tangible evidence that you made the disclosure. Your disclosure should within it include the background and reason behind your concern. It should include any relevant dates, and details of anyone else you have raised the concern/s with. Also any relevant communications, documents, photographs, or recordings could also be included. That being said, you should not pass on anything to someone outside your organisation if by doing so it would put you in breach of contract or would amount to a breach of any other law/s.
How we can help
If you are concerned about wrongdoing at work and you feel you need to make a disclosure (blow the whistle), contact our team of specialists today. They can review the matter and help you decide whether such a disclosure should be made, to whom to disclose and help you frame your disclosure in a clear and appropriate fashion.
In doing this you will also be safe in the knowledge that anything you say to your legal advisor will give you whistleblowing law protection and will remain absolutely confidential.
For further information, please contact Helen Townsend or Norman Hunter-Goulder in the Dispute Resolution Team on 01733 882800/01480 702207 or email [email protected].
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