How do you raise a concern by whistleblowing?

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Whistleblowing is when you report (what you see as) a wrongdoing in the workplace.

How do you raise a concern about whistleblowing?

Whistleblowing is where you make a “protected disclosure” about wrongdoing in the workplace, like criminal offences or regulatory breaches. A disclosure has to be made to particular individuals or regulatory bodies or it won’t be protected. Blowing the whistle is different to raising a grievance.

What is a protected disclosure?

A protected disclosure is a qualifying disclosure that is made to your employer, to the person responsible for the failure that you’re reporting, to your legal advisers or to certain other persons.

So, what is a “qualifying disclosure”?

A qualifying disclosure is any disclosure of information which the individual making it reasonably believes is in the public interest and seems to show one or more of the types of wrongdoing listed in the relevant law. The individual making the disclosure must be an employee or worker to gain protection under the whistleblowing regime. And you must make your disclosure to the right person.

There are therefore a few boxes to tick for your disclosure to be protected.  We’ll dig deeper into what those terms mean elsewhere.

What are concerns that count as whistleblowing?

There are set categories of wrongdoing that “count” as qualifying concerns that you can make protected disclosures about. You must be disclosing information which, in your reasonable belief, tends to show that one of the following types of wrongdoing has taken place, is taking place or is likely to take place:

  • Criminal offences
  • Breach of any legal obligation
  • Miscarriages of justice
  • Danger to the health and safety of any individual
  • Damage to the environment
  • Deliberate concealing of information about any of the above

This list helps illustrate the difference between whistleblowing matters and grievances – the wrongdoing must be on a much broader scale, impacting other people, or even society at large, not just you.

Notably, you only need to have a “reasonable belief” that wrongdoing is occurring/has occurred/will occur. Malicious disclosures are likely to lead to disciplinary action against you, but a crime (or other wrongdoing) doesn’t necessarily have to be involved for you to be protected.

Whistleblowing might relate to an issue such as health and safety.

What is the whistleblowing procedure?

Many employers will have a specific whistleblowing policy or procedure, which will usually be in the staff handbook. This is separate to the grievance procedure, which is for issues about your own employment or actions your employer has taken or proposes to take in relation to your employment.

The whistleblowing procedure should set out what to do if you want to make protected disclosures about wrongdoing in the organisation.

Whilst you should follow your employer’s own procedure, generally, the steps should look something like this:

  • Think about who is the best person to make a disclosure to – this could be your line manager, HR, or the nominated whistleblowing officer
  • If you’ve already made a disclosure to someone but they haven’t actioned it, then you should take it higher, or consider whether disclosure to an external body might be appropriate – it’s best to get advice before disclosing to someone outside your organisation because the further away from your organisation you go, the harder it is to gain protection
  • It’s best to make a disclosure in writing
  • Disclosures can be made anonymously, but think about whether this is the best way to go for you
  • You may be called to a meeting to discuss your concerns further – obviously this can’t happen if you disclose anonymously
  • The organisation should investigate your disclosures
  • Subject to confidentiality, you may or may not hear how the investigation goes
  • You will be protected against any repercussions or unfair treatment, including dismissal, that may be imposed on you as a result of making a protected disclosure, but if you are concerned about any detrimental treatment you are subjected to after making disclosures, then you should report it to the same person as you made disclosures to, and/or raise a formal grievance under your organisation’s grievance procedure

What is detriment following whistleblowing?

If you are treated poorly after blowing the whistle, then you may have a claim.  For these purposes, a detriment might include:

  • Being excluded from opportunities at work
  • Bullying
  • Being put into a performance management procedure, or having your performance questions
  • Reputational damage
  • Being selected for redundancy
  • Being dismissed

These are just a few examples.  In each case, the main or only reason for the treatment must be that you made protected disclosures.

Employment Law Solicitor

Whistleblowing is a complicated area of law and due to the type of information you might want to disclose, it’s worth getting advice at an early stage.

If you need more help with the subjects covered here, then do reach out to our expert solicitors.  You can speak to our employment solicitors online via email or call us on 03300 020 863.

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