EMPLOYMENT LAW

Whistleblowing at Work

Whistleblowing in the workplace is where an employee discloses or shares information about wrongdoing that they have seen at work. Examples of whistleblowing disclosures might include information about criminal wrongdoing, regulatory wrongdoing, or breach of the organisation’s obligations to others.

How do you raise a concern by whistleblowing?

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What is Whistleblowing at Work?

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Whistleblowing at Work FAQs

What is a protected disclosure?

A protected disclosure is a disclosure of information that the worker reasonably believes:

Tends to show that one or more of the specified wrongdoings has occurred, is occurring, or is likely to occur.
Is in the public interest.

What are the specified wrongdoings?

A criminal offence.
A breach of a legal obligation.
A miscarriage of justice.
A danger to health and safety.
Damage to the environment.
Any other matter prescribed by the Secretary of State.

Individual complaints are not covered by whistleblowing law – so personal grievances about bullying, harassment or some other failure or breach by an employer should be reported under the grievance policy, not as a whistleblowing concern.

How should employees report whistleblowing concerns?

Employees should usually report whistleblowing concerns to their employer. It is possible to report concerns to other bodies, such as certain public authorities. However, it’s essential to take care to report only to the specified bodies in the legislation, and there are risks attached to reporting to a body other than the employer.

Employees can also report anonymously if they wish. Whistleblowing policies should deal with what happens where an anonymous report is received, but it will be more difficult to deal with an anonymous disclosure, as the employer can’t investigate with the employee, or know who to protect from detriment or dismissal because of their disclosure.

If an employee reports a whistleblowing concern to their employer, the employer is legally required to investigate the matter. The employer must also take steps to protect the employee from being subjected to any detriment or dismissal as a result of making the disclosure.

What should employers do in response to a whistleblowing report?

Employers should take all whistleblowing reports seriously. They should investigate the matter promptly and thoroughly, and take appropriate action if the allegations are substantiated.

Employers should also take steps to protect the employee who made the disclosure from being subjected to any detriment or dismissal. This includes ensuring that the employee is not isolated from their colleagues, and that they are not subjected to any form of harassment or bullying, or to disciplinary action for making the disclosure.

What is a “detriment” because of whistleblowing?

A detriment can be anything done – or not done – to an employee or “worker” because they made a protected disclosure. That could include dismissal, but it also covers being subjected to bullying or harassment, receiving a poor appraisal review or put into performance management proceedings, being suspended or subjected to unwarranted disciplinary action, or being demoted or denied promotion.

What potential claims could employees bring if they are subjected to a detriment or dismissed because they blew the whistle?

Employees who are subjected to a detriment or dismissed because they blew the whistle could bring a number of claims, including unfair dismissal. Notably there is no minimum service requirement for unfair dismissal because of whistleblowing.

There is also no cap on compensation for unfair dismissal for whistleblowing.
If an employee has been harassed because of making protected disclosures they may have harassment claims under the discrimination legislation depending on the circumstances.

What are the time limits for bringing whistleblowing claims?

The time limit for bringing a claim for unfair dismissal is usually three months from the date of the dismissal or detriment suffered. So, employees must start Acas Early Conciliation within 3 moths of the dismissal or last detrimental act they want to complain about. Prospective claimants have to go through Acas Early Conciliation before they can start an Employment Tribunal claim.

An interim relief application can also be made within 7 days of dismissal.

What are the remedies available for whistleblowing claims?

The remedies available for whistleblowing claims will vary depending on the specific circumstances of the case. However, possible remedies include reinstatement or re-engagement and compensation, which is unlimited in whistleblowing unfair dismissal cases.

It is also possible to obtain an award of interim relief in whistleblowing cases. Interim relief is basically a compensation payment that is paid up to the final merits hearing – it’s a stop gap, requiring payments to be made to the employee by the employer pending a final decision on the claim.

The employee has to apply to the Employment Tribunal within 7 days of dismissal, and in certain circumstances the tribunal can order the employer to continue paying the employee’s salary until a final merits hearing of the claim. This is rarely done because of the extremely tight timeframe to apply.

What are the penalties for employers who retaliate against whistleblowers?

Employers who retaliate against whistleblowers could face a number of penalties, including having to pay an award of compensation to the employee if the employee succeeds in a claim. Occasionally, Employment Tribunals can order the employer to reinstate or re-engage the employee – though this is rare given that relations have generally been damaged beyond repair by the time of a final merits hearing.

There are also potential PR and reputational issues arising from publicly defending a claim centred around the employer’s actions in reporting the employer’s own wrongdoing.

What are the steps that employers can take to protect themselves from whistleblowing claims?

Employers can take a number of steps to protect themselves from successful whistleblowing claims, including:

Having a clear whistleblowing policy in place, and using it.
Training employees on the whistleblowing policy.
Investigating whistleblowing reports promptly and thoroughly.
Taking appropriate action if the allegations are substantiated.
Protecting whistleblowers from retaliation.

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