by
Ryan Clement
IN THIS ARTICLE, I am going to discuss, ‘Whistleblowing,’ from an employment perspective.
FIRST THING to make clear are two things. It’s not about actually blowing a whistle to one’s employer, although, of course, there is nothing in law preventing a worker from doing so when disclosing information about a wrongdoing. Second, which might come as a surprise to some people. If you search your statute books for the title, ‘whistleblowing,’ you’ll be searching in vain because it is not its proper name. The law is in fact found under the less flattering title, ‘Public Interest Disclosure,’ within the Employment Rights Act 1996.
EFFECTIVELY, as we shall discuss, ‘whistleblowing,’ is revealing something to an appropriate authority, which may include one’s employer or someone for whom one works, but not necessarily so, about a prescribed set of wrongdoing, the whistleblower believes has taken place, which is in a public interest. The whistleblower is then protected from suffering any harm from, say, the employer or, for that matter, anyone who engages them for blowing the whistle.
Such harm could be, for example, dismissal, no pay rise, no promotion, but not limited to these. This area of law is highly technical, but I shall break it down to aid one’s understanding and to make it as palatable as I can to enlighten you of this very important area of law.
NOT every alleged perceived wrongdoing would amount to ‘whistleblowing’ under the Employment Rights Act 1996. It must be one that qualifies. If it does not qualify, then the worker runs the risk of not being protected in law from suffering a detriment or being dismissed based on what may have been nothing more than a bare complaint.
So, what makes a disclosure of information qualify as being a public interest disclosure, a.k.a. ‘whistleblowing’? There was much debate a few years ago as to what amounts to information. For example, is information only one of fact or opinion, or can it be a mixture of the two, i.e. fact and opinion? It is widely accepted as being the first and last, i.e. fact or a mixture of fact and opinion. Importantly, however, the whistleblower need not be an employee. It is enough for the person to be a worker, i.e., in general terms, someone under a contract who undertakes to do the work personally.
THE ALLEGED WRONGDOING must be in the public interest. In other words, if it is an alleged wrongdoing that amounts to a personal matter and no more, the disclosure of information will not amount to, ‘whistleblowing,’ in law and, more to the point, will not afford the worker the statutory protection and or rights under our discussion. So, a complaint that one’s employer has run out of tea bags or failed to stock up on Earl Grey in the staff Canteen, important as they may be to some, is highly unlikely to be in the public interest. So, what qualifies as a disclosure of information?
A qualifying disclosure of information is one where, in the reasonable belief of the whistleblower, reveals at least one of the following alleged wrongdoing: a criminal offence; a failure to comply with an illegal obligation; a miscarriage of justice; endangering a person’s health and safety; damaging the environment; or concealing any of these.
IMPORTANTLY, it is immaterial whether what is alleged is true or false. As stated already, the worker is protected if they ‘whistleblew’ in the reasonable belief that the malpractice in question had occurred, occurs or would occur.
The question I hear, therefore, is, ‘Why whistle blow in the first place?’ Unfortunately, I don’t have an answer for that because that is a, ‘How long is a piece of string?’ type of question. It could be moral, ethical, legal, and in some cases, financial, as well as a mixture of them all.
In the US, for example, in some cases, you can make a financial claim for whistleblowing. But I am not here to discuss the reasons for people acting the way they do. So, let’s consider the consequences of ‘whistleblowing.’
PUT SIMPLY, if you have made a qualifying disclosure, you are protected from suffering a detriment or being dismissed. Effectively, a detriment is anything short of a dismissal. So, what is the approach adopted by the court in determining whether a ‘whistleblower’ has so been treated?
Well, if the reason, or if more than one, the principle reason, for the dismissal is that the ‘whistleblowing-employee’ made a protective disclosure, they will be deemed to have been unfairly dismissed. Note that a stipulated two years’ continuous employment does not apply to qualify for protection from being unfairly dismissed and damages are not capped as in ordinary unfair dismissal cases.
In the case of the ‘whistleblowing-worker,’ that person is deemed to have suffered a detriment if there has been any act or any deliberate failure to act by the employer on the grounds that the worker made a protective disclosure.
I hope this has been helpful in what is a highly technical area of law
UNTIL NEXT TIME!
Ryan Clement, LLM, BA, BSc, FRSA barrister
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