On rare occasions, individuals might commit wrongdoing during their employment with you. This could be staff, or even your business partners. When this happens, employees may decide to raise a concern through whistleblowing.
Whistleblowers have legal protection. So if a staff member does decide to blow the whistle, you must manage it correctly. If you don't, you could face reputational damages, and in serious cases, business closure or even potential imprisonment.
In this guide, we'll discuss whistleblowing, your staff's employment rights, as well as what information is of public interest.
What is a whistleblower?
A whistleblower is a person who chooses to disclose information regarding a business's wrongdoing. This can be a company in the private or public sector. But in each particular case, the details they reveal must be in the public interest. For instance, if it affects the general public.
Staff raising concerns can do so regarding any activity that happened in the present, or past. They can also raise concerns about wrongful activity they believe is likely to occur in the near future. For example, if a manager has informed them they plan to steal customer information.
Whistleblowing employees are protected by law, and must not be treated unfairly because of this. For instance, if an employer was to explicitly dismiss a staff member for blowing the whistle, this would be automatically unfair dismissal. And could lead to claims to an employment tribunal, which might mean you have to pay hefty fines.
What type of law protects whistleblowers?
The Public Interest Disclosure Act 1998 aims to protect whistleblowers under certain criteria. This ensures they don't receive detrimental treatment from their employers. For example, if an employer allows coworkers to put a staff member in detriment for whistleblowing.
However, the individual blowing the whistle must have a reasonable belief that this activity has or will occur. If the disclosing information is a personal problem and not in the public interest, this will not be protected by the law. For example, a workplace dispute or any personal grievances.
It's also worth noting that any agreed gagging clause between an employer and employee becomes invalid if they partake in whistleblowing. For example, any confidential conditions in a settlement agreement or employment contract. This is because an employee cannot be prevented from blowing the whistle.
What is a qualifying disclosure?
A qualifying disclosure is any information a worker discloses to the right person about a business or workplace.
This information might include:
- A criminal offence: For example, if an employee commits fraud.
- Someone's Health & Safety is in jeopardy: For example, not using appropriate PPE and putting employees in danger.
- Risk or actual damage to the environment: For example, if an employer illegally disposes of waste.
- Failure to comply with a legal obligation: For example, selling faulty products and illegitimate services. Or not using the right insurance.
- A miscarriage of justice: For instance, if a staff member is fired for something that wasn't their fault.
It also includes any deliberate attempt to cover up the above matters; for example, concealing information about fraudulent activity. As well as any failure to comply with legal obligations. If a staff member raises a qualifying disclosure in the correct manner, it will be come a protected disclosure.
Are qualifying disclosures the same as protected disclosures?
No. A qualifying disclosure only becomes a protected disclosure if the worker discloses it in the appropriate manner. A protected disclosure simply means the worker has:
- Reasonable belief that wrongdoing has occurred.
- Disclosed the information to the right person or organisation.
A qualifying disclosure will not be protected if the employee commits a criminal offence by revealing the information. For example, if they hack into computer files. But, there can be practical difficulties of ascertaining whether the disclosure amounts to a criminal offence - if no trial has taken place.
Legal advisors who breach their professional privilege by disclosing information are also not protected. For example, if they learn something unlawful when providing legal advice.
Who is considered a whistleblower?
Usually, a whistleblower is a current employee or worker who chooses to expose information about their employer. For instance, a student nurse could potentially be a whistleblower. As mentioned, for them to qualify as a whistleblower, the information must be a protected disclosure.
Other examples of whistleblowers could be:
- Former employees.
- Trainees.
- Agency workers.
Whistleblowers can also include members of an organisation. For example, if they're a part of the Limited Liability Partnership (LLP).
Who is not protected by whistleblowing law?
The law around whistleblowing does not protect those who are self-employed, a volunteer or a non-executive director.
In certain circumstances, an employee is not protected by the law for whistleblowing, especially if they're blowing the whistle in bad faith, or for personal gain. For example, if they had a bad employment experience and want to cause reputational damage to a company.
Why is whistleblowing important?
Whistleblowing is important because it promotes a healthier workplace culture. Whistleblowing ensures acts of wrongdoing at work aren't ignored, and that people face repercussions for inappropriate or illegal conduct.
Other reasons why whistleblowing is important include:
- Minimises risks and unsafe practices.
- Ensures businesses are legally compliant.
- Helps companies retain happier employees.
Not to mention, reporting acts of wrongdoing is ethically and morally the right thing to do.
Who can staff blow the whistle to?
There are several people the law advises staff to blow the whistle to. These include:
- Their employer. For example, a line manager.
- A prescribed person or body. For example, the HMRC if the issue is regarding tax fraud.
Employees must ensure they disclose information to the right person, otherwise, they won't be protected by whistleblowing law.
Making such disclosures is a serious matter. So it must be handled appropriately, by both your employee and yourself.
What to include in your whistleblowing policy
There are several items you should include in your whistleblowing policy. For example, you must ensure staff know who to report whistleblowing to, and how.
Let's explore some other steps you should take when an employee blows the whistle.
Definitions
Firstly, start your policy by outlining what whistleblowing is. Make sure employees understand what it means to be a whistleblower, and how a concern is dealt with through whistleblowing. Staff should also be aware that whistleblowing is not used for raising a personal complaint or grievance against the company or an employee.
Your policy should also state that not all disclosures raised will classify as a threat to the general public. If workers wish to report wrongdoing, they should have confidence in doing so – without facing discrimination or dismissal.
Statement of intent
With every workplace policy, employers need to present their statement of intent. In this case, your declaration should outline your intention towards managing wrongdoing – well before it reaches public interest.
Ensure your statement covers every action the business will take during this time. As well as outlining what requirements fall on employees who are raising concerns.
Outline whistleblower protection
Whether it'll affect your business or not, whistleblowers are legally protected under employment law. Make sure you highlight legal protection terms in the policy, as well as employer rights during cases.
Employees must not be discouraged from raising a concern. Protecting them during this time will help minimise conduct that is both legally and morally wrong.
The whistleblowing process
When an employee wants to report or raise a concern, they need to adhere to the following:
- Relevant people: The employee should raise their concern to the right person as stated in whistleblowing law.
- Information: A whistleblower is technically not obligated to provide evidence (but can do so if they wish). Instead, they should raise their concern; explain their issue; and present any information or accounts they hold.
- Procedure: Outline the steps the whistleblower must take. Then, deal with any wrongdoing accordingly, without neglecting or ignoring matters. Make sure your employee knows they can seek independent advice. For example, through an independent whistleblowing charity or trade union.
Your policy needs to clearly state the consequences of disclosures raised maliciously or in bad faith. Any false disclosure could lead to disciplinary action; as well as undermine the point of the policy.
Confidentiality clause
In most cases, employees might lack the confidence to raise matters through whistleblowing. Or they could feel uncomfortable speaking out about concerns publicly. That's why it's vital to keep confidentiality throughout the report – especially when it comes to raising anonymous allegations.
Avoid leaking identities to people outside the disclosure. And ensure only relevant people or departments are informed about the report.
Get expert advice on whistleblowing from Peninsula
You must manage whistleblowing in your workplace according to the law. Staff are protected by law when it comes to whistleblowing, so ensure you listen to their concerns, investigate, and find a reasonable solution.
If employees are treated unfairly for whistleblowing, they might raise a claim against you to an employment tribunal. As a result, your business could end up paying hefty compensation, as well as experiencing reputational damage.
For those wanting to seek advice on whistleblowing issues, Peninsula can help. Our teams provide 24/7 HR advice which is available 365 days a year. We take care of everything when you work with our HR experts.
Want to find out more? Contact us on 0800 028 2420 and book a free consultation with an HR consultant today.
