Whistleblowing

Whistleblowing is the term used when an employee makes a disclosure concerning wrongdoing, typically while at work. These disclosures are protected under whistleblowing law, as set out in the Employment Rights Act 1996 and amended by the Public Interest Disclosure Act 1998.

In order to be covered by this law, the employee blowing the whistle must believe two things:

  • That they are acting in the public interest (i.e. the complaint should not be of a personal nature)
  • The reported wrongdoing (whether past, present or future) falls into one of the following categories:
    • A criminal offence (e.g. fraud)
    • Failure to comply with legal obligations
    • Miscarriage of justice
    • Endangerment of health and safety
    • Damage to the environment
    • Covering up any of the above offences.

Legal protection for whistleblowers

Whistleblowers are protected by law against unfair discrimination or dismissal as a result of their disclosure. Those protected include:

  • Employees
  • Trainees
  • Agency workers
  • Members of Limited Liability Partnerships.

Any non-disclosure agreement or ‘gagging’ clause included in an employee’s contract of employment will become void if they have made a valid disclosure.

If you are a whistleblower and believe you have been treated unfairly as a result, it is important to seek legal advice as soon as possible, as it is likely your case will have to go before an employment tribunal.

‘Unfair treatment’ could involve:

  • Demotion or restricted duties
  • Dismissal
  • Bullying/harassment
  • Withholding of bonuses or employee benefits
  • Discrimination
  • Pressure to resign

Advice and guidance for employers

If your employee has blown the whistle, it is very important to tread carefully and take the right steps to avoid future claims against you – which is why it is advisable to seek legal advice as soon as possible in order to avoid damage to your business and reputation.

While the employee can still be disciplined or dismissed for reasons unrelated to their grievance, employers must be careful to ensure these actions are fully justified and can be shown to be unrelated to the disclosure.

Employers can also be held vicariously liable if another employee commits an act of bullying, harassment or victimisation against the whistleblowing employee, unless you can prove that all possible steps were taken to prevent this.

Whistleblowing should be seen as a positive process that provides employers with the opportunity to root out malpractice and criminal behaviour within their organisations, but dealing with it can be a delicate matter. That’s why it’s important to have expert employment lawyers on hand, who can guide you through the process while offering valuable peace of mind that all the correct steps have been taken.

We can also assist you in drafting a whistleblowing policy for your business, which will help you and your business to deal with whistleblowing effectively and remedy any issues that have been raised.

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