Last reviewed 14 March 2016
In this article, Kathy Daniels — FCIPD, SFHEA, Employment Law Author and Lecturer, looks at recent case law on whistleblowing and changes that are to come to the reporting process.
Whistleblowing is something that many employers worry about. Before we look at some recent cases and changes that are coming, let us clarify what it is and is not.
“Whistleblowing” is an everyday term that refers to a disclosure being made under the Public Interest Disclosure Act 1998. If an employee knows, or suspects, that something wrong is happening in the organisation and then discloses that information, it will be a protected disclosure if:
the employee believes that what is being disclosed is true; the protection exists even if the employee is wrong; the important point is what the employee reasonably believed
the disclosure is not made for any personal gain
the disclosure is reported to the employer before going to a regulatory body; the employee is not required to do this if he or she reasonably believes that this could lead to the employer destroying evidence, or taking other action to conceal what is happening
the disclosure is in the public interest.
It is important to note that there used to be a requirement for the disclosure to be made in good faith. This requirement was removed in 2013, but if the disclosure is not made in good faith and the employee suffers a detriment for making the disclosure, any compensation awarded can be reduced by up to 25%.
If the employee makes a protected disclosure to their employer, and the employer does nothing about it, or takes action which the employee does not think addresses the issue, the employee can then take the issue to a “prescribed person”. This is an appropriate regulatory body. For example, if the concern relates to health and safety it would be taken to the Health and Safety Executive, and if it related to tax it would be taken to the HMRC.
If the employee does make a protected disclosure, he or she must not be dismissed for doing this and must not suffer any detriment. This would mean, for example, that the employee must not be denied promotion, a bonus, a pay increase or any other benefit due to the making of a disclosure. A dismissal for making a protected disclosure will be automatically unfair.
As already noted, a disclosure must be of “public interest” for it to be a protected disclosure. This change was made by the Enterprise and Regulatory Reform Act 2013, and was made in response to concerns that whistleblowing could be used by an employee to address a contractual situation that affected them alone. By having to be in the “public interest” personal contractual disputes are excluded. There have been two recent cases that have questioned whether contractual disputes that affect more than one employee can be in the public interest.
In Chesterton Global Ltd v Nurmohamed  an employee made a disclosure that his employer was over-stating office costs, which resulted in a reduction in the bonus that he and over 100 of his colleagues was entitled to receive. The employer argued that this was an issue that was not in the public interest.
The Employment Appeal Tribunal found in favour of the employee, finding that the issue had a wider impact than just relating to one individual and hence it was in the public interest.
A similar ruling was made in the case of Underwood v Wincanton plc . In this case, a number of employees had complained about the way in which overtime was being assigned. Underwood, one of the complainants, was dismissed and he successfully argued that the disclosure made was in the public interest, because it affected more than just one employee.
The guidance we can take from these two cases is that, if there is an issue that affects a group of employees, it could potentially be in the public interest, and hence it could be a protected disclosure.
Continuing action after a disclosure has been addressed
Although the legislation does protect an employee who makes a protected disclosure, it does not mean that the employee can keep raising the same issue once it has been investigated. This was demonstrated in the recent case of Nese v Airbus Operations Ltd .
In this case, the employee was working on a number of aircraft development projects and raised a range of different safety concerns at different meetings with different people. All his concerns were investigated, and the conclusion was that they were unfounded.
However, he continued to raise the same concerns after the investigations were completed, and eventually he was dismissed due to gross misconduct. He argued that his dismissal was automatically unfair because the reason was that he had made a protected disclosure. His argument was unsuccessful. He was not dismissed because of the protected disclosures that he had made, but because of his behaviour after they had been investigated and addressed. Hence, it was accepted that dismissal on the grounds of gross misconduct was fair.
Changes to come
Further changes to the processes relating to whistleblowing are to take place as a result of the Small Business Enterprise and Employment Act 2015. There is currently no date set for when these changes will take place.
The changes are that the “prescribed person” to whom a disclosure is made will be required to publish details of the disclosures that they receive in an annual report. Although we still need further details about exactly what will be required, it is clear that the report will not identify the person who has made the disclosure, or the person or employer who the disclosure has been made about.
MPs have recently been added to the list of “prescribed persons” but they will not be required to make an annual report.
It is expected that the report will have to include the number of:
disclosures that qualify as protected public interest disclosures
these that did not require any further action
these that were referred to an alternative body
disclosures that required further research
investigations that led to action being taken
cases where the issue was resolved after first contact with the employer
organisations investigated that had whistleblowing policies in place.
Action to take to manage possible disclosures in your organisation
If an employee does make a disclosure to you, it is important to be seen to act promptly and to take their concerns seriously. Follow these steps.
Confirm receipt of their disclosure and set out, in broad terms, what you will do to investigate the matter. If necessary, meet with the employee to obtain more details about the disclosure.
Carry out the investigation.
Meet with the employee to share your findings. If there is something that needs addressing explain to the employee, in as much detail as is appropriate, what you will do. If you have concluded that there is no action required, explain your reasoning to the employee.
Make sure that none of your managers or other employees subject the individual to any detriment as a result of the disclosure.