Whistleblowing: employer guidance

Whistleblowing in the workplace is dealt with under the Employment Rights Act. The following guide looks at the law on whistleblowing at work, from what protection a whistleblower may be afforded to what an effective whistleblowing policy should include.

What is a whistleblower?

A whistleblower is an individiual who reports certain types of wrongdoing, typically some form of dangerous or illegal activity that they have witnessed. In the workplace environment, this may mean they take steps to make senior management and/or the relevant industry authorities aware of the workplace wrongdoings.

What counts as whistleblowing?

Not every concern reported by a worker will count as whistleblowing. Under the ERA 1996, the wrongdoing disclosed must satisfy each of the following criteria:

• The complaint must be a ‘qualifying disclosure’
• The complaint must be made ‘in the public interest’
• The complaint must be made to an appropriate or prescribed person or body, such that it is classed as a ‘protected disclosure’.

Qualifying disclosures

A qualifying disclosure is defined under the 1996 Act as any disclosure of information that, in the reasonable belief of the individual making the disclosure, tends to show one or more of the following:

• That a criminal offence has been committed, is being committed or is likely to be committed
• That a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject
• That a miscarriage of justice has occurred, is occurring or is likely to occur
• That the health or safety of any individual has been, is being or is likely to be endangered
• That the environment has been, is being or is likely to be damaged, or
• That information tending to show any matter falling within any one of the above has been, is being or is likely to be deliberately concealed.

It is immaterial whether the relevant failure occurred, occurs or would occur within or outside of the UK, and whether the law applying to it is that of the UK or of any other country or territory. In other words, a disclosure may still qualify where it relates to a matter occurring outside the UK, or where any offence or breach of a legal requirement involves the laws of another country.

Common examples of complaints that fall within the ambit of whistleblowing law are the commission of a criminal offence such as fraud, or where the company or organisation is deliberately flouting rules relating to health and safety.

In the public interest

Under the ERA 1996, the individual who makes a qualifying disclosure must also reasonably believe that they are acting in the public interest in so doing.

That said, the whistleblower need not be correct about their concerns, provided they have reasonable grounds for believing that the information disclosed, and any allegation contained in it, are substantially true.

In other words, their belief must be honestly held in all the circumstances prevailing at the time of the disclosure. Their complaint can also relate to past, present or likely future wrongdoing.

However, a complaint will not usually count as whistleblowing where it can be characterised as a personal grievance rather than a public concern, for example, bullying, harassment and discrimination. That said, this type of behaviour is still unlawful, albeit under different rules and to be dealt with in different ways.

Protected disclosures

For a qualifying disclosure to be protected under the 1996 Act, typically it must be made to the employer or any other person whom the whistleblower reasonably believes to be solely or mainly responsible for the relevant failure.

That said, disclosures may also be protected if they are made to a ‘prescribed person’, such as a regulatory body designated for the purpose, for example, the Health and Safety Executive or the Care Quality Commission, as well as for the purpose of seeking advice from a legal adviser.

Different rules apply as to when each of these disclosures will be protected. In particular, the rules covering disclosures ‘in other cases’ are extremely strict, whereby the individual must reasonably believe that the information is substantially true and not be acting for personal gain.

In addition, to make a protected disclosure ‘to others’ the individual must have previously raised the matter with their employer or with a prescribed body, or has not done so because they reasonably believe they would be penalised for so doing or that evidence would be concealed or destroyed.

Are whistleblowers protected by law?

To qualify for protection under the ERA 1996, the individual making the disclosure must be acting in good faith throughout and must have reasonable grounds for believing that the information disclosed indicates the existence of one of the problems as set out above, from the commission of a crime to the concealing of evidence relating to a wrongdoing in the workplace.

The worker must also “whistleblow” in the right way and to the right person for that disclosure to qualify as protected. However, in circumstances where all these requirements are met, the whistleblower has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the individual has made a protected disclosure.

A detriment could include an employer’s refusal to offer the whistleblower promotion or training opportunities, or even demoting or dismissing that individual. In particular, an employee who makes a protected disclosure can make a claim for automatically unfair dismissal if they lose their job in consequence of having reported the wrongdoing.

As such, the law on whistleblowing is there to ensure that if, for example, a person witnesses any dangerous or illegal activity at work, they are able to raise this within their company or organisation, or to the appropriate authorities, without jeopardising their career progression or job security.

In addition, the protection afforded to the whistleblower extends to any detriment by a co-worker in the course of that other worker’s employment, whereby anything done will be treated as done by the employer. In other words, the whistleblower must not be treated unfairly by either their employer or work colleagues, nor lose their job, by reason of having made a protected disclosure.

That said, although it is immaterial whether any detriment occurs with the knowledge or approval of the worker’s employer, in proceedings against the employer in respect of anything alleged to have been done, it is a defence for the employer to show that they took all reasonable steps to prevent the other worker from doing that thing, or from doing anything of that description.

Is whistleblowing ever illegal?

Although the act of whistleblowing is not, in itself, illegal, there are limited circumstances in which making a disclosure of certain information can be classed as the commission of an offence.

The classic example is where a worker leaks official information in contravention of the Official Secrets Act, whereby that individual may still be prosecuted regardless of the public merit of the information revealed or whether any damage to national interests was actually caused.

Further, under the ERA 1996, where any person making a disclosure commits an offence in so doing, this will not be treated as a qualifying disclosure, thereby not affording the worker any legal protection as a whistleblower.

How to handle whistleblowing in the workplace

Where a worker has concerns as to possible malpractice within the workplace that has either happened in the past, is happening now or they believe will happen in the near future, it is open to them to report the matter at any time.

Typically, the individual would be well advised to follow any procedures set down by the employer. These will often be found in the individual’s contract of employment or within the text of the employer’s grievance procedure.

In many cases, whistleblowing will involve the worker reporting their concerns directly to the employer in the first instance. However, in some cases, the individual may feel unable to use their employer’s disclosure procedure and will look to reporting the matter to a prescribed or other person or body.

It is important to note, however, that in the absence of any written policy or procedure on whistleblowing within the workplace, this does not preclude a worker from making a protected disclosure.

Equally, the existence of any contractual clause relating to confidentiality within an individual’s contract of employment, or even a gagging clause in a settlement agreement, will be void in so far as it purports to preclude the worker from making a protected disclosure.

In some cases, an individual may choose to make a report to an employer or prescribed person anonymously, although in these circumstances the matter may not be able to be taken further if the whistleblower has not provided sufficient information needed to do so.

By way of alternative, an individual can provide their name but request confidentiality, such that the person or body that the matter is reported to should make every effort to protect the whistleblower’s identity.

Once a complaint has been made, the employer or prescribed person will decide what action to take and/or whether further inquiries need to be made.

Although the whistleblower will not have a say in how the wrongdoing is dealt with, they may be kept informed of what progress is being made, albeit subject to the person or body dealing with the matter protecting the confidentiality and data protection of others.

In circumstances where a whistleblower is not satisfied with how their concerns have been dealt with, for example, where they do not feel the matter has been taken seriously and/or the wrongdoing is continuing, they may decide to report the matter to someone else, including a prescribed person or body. That said, to remain protected, this must still be done in the right way to the right person.

For the employer moving forward, it is important that they do not treat the whistleblower differently following a protected disclosure, although there is nothing preventing the employer from taking disciplinary action, or even dismissing an individual, in the ordinary course of the employment relationship for reasons unrelated to the complaint.

Being a whistleblower only affords a worker protection against victimisation for that reason only, and not for any misconduct or poor performance on their part.

The role of the company whistleblowing policy

Although an employer is not legally required to have in place a whistleblowing policy to handle protected disclosures, nor is an employee or worker bound to follow one, the importance of implementing, or making use of, a whistleblowing policy in the workplace cannot be underestimated.

For the employer, by implementing clear procedures and policies on making protected disclosures, this will help to create an open, transparent and safe environment for workers to feel able to speak up without fear of reprisal.

This may even help to prevent any wrongdoing that could damage the reputation and performance of the employer’s business and, in some cases, serve to protect others, and the environment, from any risk of harm.

For the whistleblower, where the matter results in a complaint to the employment tribunal, compliance with any internal whistleblowing policy may help to determine the reasonableness of their actions in making the disclosure and thereby safeguard any claim for unfair dismissal or other detriment.

Further, by following the correct whistleblowing procedure, this may even help to safeguard the employee’s job security and prospects at work in the first place.

A whistleblowing policy is a written policy that sets out the procedures for dealing with a protected disclosure. In broad terms, this should set out who will be afforded protection and how protected disclosures will be dealt with.

It should also outline the rights and remedies for whistleblowers in the event of them being treated unfairly or suffering a detriment as a result of making a protected disclosure.

For employers looking to offer more detailed guidance, the whistleblowing policy should include an explanation as to the nature and extent of any feedback the whistleblower can expect to receive having made a protected disclosure, as well as an explanation of the steps that can be taken if the whistleblower is not happy with how the disclosure has been dealt with.

Whistleblowing FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.