Last reviewed 1 February 2016
It seems like common sense that someone who witnesses a wrongdoing should be able to report that wrongdoing without fear of reprisal. It is, in fact, becoming more and more common that, when a company is doing something wrong, it is an employee who has blown the whistle. In this article, Gudrun Limbrick looks at what is in place to protect those individuals when they call time on the inappropriate activities being carried out by the very company that provides them with their livelihood.
The act of whistle-blowing is formally defined as the reporting of malpractice within a company. Reporting can be to the employing company itself or to a relevant official body (for example, the Care Quality Commission (CQC) in the case of care organisations). It does not have to be an employee that exposes the wrongdoing, it could be someone who is a customer or a partner or someone who sits on the board of directors. Employees are very often the whistle-blowers, however, and they are also often the people who need the protection of the law.
Potential whistle-blowers are often nervous about exposing their employer’s malpractice as it may mean that they are victimised or bullied at work, overlooked for promotion or even sacked from their jobs. This fear has the double-edged effect of not only meaning poor treatment for those who do come forward, but also meaning that fewer people are likely to come forward at all, leaving potentially illegal employment practice to continue unabated.
For these reasons, whistle-blowers are protected by law, specifically the Public Interest Disclosure Act 1998. However, the powers of this legislation are limited and the onus is on the whistle-blowers to ensure that, in their particular situation and given the specifics of their particular grievance, the law can protect them.
The question of protection (since 2013 when this additional restriction was introduced) rests on whether the matter is of public interest or not. It does not, importantly, hinge on whether the report is correct, only whether it is of wide interest. Thus, for example, a person may correctly report that he or she is being harassed at work. However, if this were deemed a private grievance matter (which should thus have been resolved internally), the individual is not protected under the Public Disclosure Act. Even when reporting a matter is definitely in the public interest, it has to be both a matter of a specific nature and reported in a prescribed way in order to come under the terms of the Act. In terms of the nature of the matter, the following are covered by the Act.
A criminal offence.
The breach of a legal obligation.
A miscarriage of justice.
A danger to the health and safety of any individual.
Damage to the environment.
A deliberate attempt to conceal any of the above.
In terms of the correct procedure for a disclosure in the public interest, individuals must first report the matter to their employer. If they have reason not to inform the employer first, disclosure must be to one of a list of prescribed organisations. For example, the Comptroller and Auditor General should be contacted for matters related to the proper conduct of public business, value for money, fraud and corruption in relation to the provision of public services, or the Children’s Commissioner for matters relating to the rights, welfare and interests of children in England. The complete list of prescribed organisations is available at www.gov.uk/whistleblowing. It is also acceptable for the individual to make the disclosure to his or her legal advisor in the course of attaining legal advice about the matter. What is clear is that disclosure cannot be made through posting it on Twitter or by calling a tabloid newspaper if the individual is concerned about maintaining their employment rights.
A recent case has illustrated quite how tricky it can be to assess whether or not a case is in the public interest, even for the experts. The case of Underwood v Wincanton was about the contracts of heavy goods vehicle (HGV) drivers. It was reported that Underwood claimed he was sacked as a result of making a complaint about his contract with the company and the contracts of a number of his colleagues. He argued that he should not have been sacked as it was a disclosure in the public interest. The employment tribunal disagreed and said that it was essentially a private matter not in the public interest. However, the Employment Appeal Tribunal, found that it could be considered in the public interest as the matter affected not just him but a number of colleagues in the company. It would seem that the issue of public interest is by no means clear cut, even for the experts.
The next fly in the ointment is that, even if a disclosure is deemed to be in the public interest and carried out in the correct manner, a tribunal has the power to reduce any compensation awarded (for unfair dismissal, for example) if it is believed that disclosure was made in “bad faith”, eg for the purposes of revenge rather than for the public good.
So where does this leave employees and employers who need to ensure maximum protection for themselves? The first good piece of advice for both employees and employers is to get good advice. Acas is a great source of advice (for both) and its website helpline is an excellent starting point. Employees need to gain advice initially and act on that advice. Citizen’s Advice should also be able to offer initial advice to employees and it is also a good idea to get copies of the company’s grievance policies and procedures and ensure that the prescribed steps are taken. In terms of the complaint itself, detailed notes on what happened and when will need to be made and any evidence collected that will help the investigating body. It is not the employee’s job to be the advance investigator, but enough information needs to be kept to ensure that a clear picture can be given when a complaint is made.
Whenever there are meetings between employee and employer (to make the disclosure or for subsequent discussions), clear notes should be kept by both parties about who was present, when the meetings were and what was said by whom. This could provide useful information, for either party, should the case end up in an employment tribunal. For example, for the employee, the employer may make it clear that they want the individual out. For the employer, their dismissal decision could be upheld if the employee gives other cause to dismiss other than the disclosure.
There is a misconception that employees will be protected if they blow the whistle on malpractice that is found to be happening. It is not so simple. There are certainly many instances in which someone can disclose malpractice that is proven to be happening but then lose their employment rights because it was disclosed in the wrong way to the wrong people. So anyone considering blowing the whistle, no matter how right they are and how justified they feel, needs to think twice and seek advice before doing so. Fortunately, good, free advice does exist and is there for the asking.