What Is Whistleblowing?
This means that an employee, worker, or agency worker has reported specific information about the practices of wrongdoing within the Company. The reporting of the issue can be to either the Company/employer or to the relevant authority.
Public Interest Disclosure Act 1998 (PIDA)
This legislation protects ‘whistleblowers’ from being subjected to any detriment in their employment, because of the claim that has been made. It states that when an employee makes a ‘protected disclosure’ about a ‘qualifying disclosure’ any dismissal is automatically unfair.
However, it also states that certain employees, for example, police officers or Secret Intelligence Service are not protected by the Act.
Qualifying Disclosure
The allegation needs to relate to a qualifying wrongdoing which will often be an act that the employee has witnessed or has been alerted to. The following are examples of what would qualify under the protection of whistleblowing;
- Criminal acts, for example, fraud;
- Failing to comply with legal obligations;
- Endangering a person’s health and safety in the workplace;
- Damage to the environment;
- Miscarriages of justice;
- Covering up wrongdoing by destroying evidence.
Protected Disclosure
This refers to the employee’s intent behind making the whistleblowing.
An employee who is raising a specific concern does not need to provide evidence; they do need to be able to ‘back up’ the claim as the whistleblowing needs to be done in good faith and in the public interest. If this is not the case and the allegation has been made maliciously, or the employee was aware there was no truth in it there is no protection.
If the whistleblowing qualifies for protection, it will mean that an employee cannot be dismissed or victimised because of the concern that has been raised. If an individual’s employment is terminated due to alerting an employer, this could result in an unfair dismissal claim for compensation.
Whistleblowing or Grievance?
As whistleblowing needs to be done in good faith, it cannot be as the result of a specific grievance or complaint with another employee. This is why the grievance procedure will not apply, as it related to issues that are more personal than the public interest requirement of whistleblowing.
While a Company is not obliged to have a Whistleblowing policy in place, it is advisable. The policy will demonstrate to employees that the business is open to listening to their concerns and will be taken seriously. A Company will not plan for the policy to be required; however, there are legal responsibilities for the employer if whistleblowing occurs. Therefore it would be good practice to have a policy in place that makes employees aware of the procedure.
Whistleblowing Policy
For a policy to be effective, it is advisable to include the following;
- Stress the importance of alerting the Company to concerns rather than to a third party
- Advise the employees who would be the appropriate contact for raising a qualifying concern
- Include behaviour reminders and explain what is not acceptable
- List the steps the investigation will take when suspicion has been raised
- State the process for dealing with individuals who victimise a co-worker that has raised a genuine concern
- Make employees aware that the Company will not tolerate malicious or fabricated allegations
- Make it clear that staff will not be treated negatively as a result of whistleblowing
- Outline that this policy will apply to all members of staff. This will include workers, agency staff, and employees.
Employer Responsibilities
A Company should try and make employees aware that any suspicions should be brought to their employer’s attention. If a supportive environment has been created, members of staff are more likely to come forward to report wrongdoing.
It is in the employer’s best interests to deal with the situation before it has been raised to third-party authority, as it allows time for a full investigation leading to the Company being able to make the necessary changes or act on the concerns that have been raised.
If an employee or worker raises a concern that is a legally protected disclosure and is dismissed it will automatically be unfair. Therefore, the member of staff will be entitled to make a claim for this against the Company. Employees are more likely to raise concerns when they feel sure that it will be confidential and that they will not receive any unwanted attention in the workplace. Therefore it is essential to have procedures in place that enables genuine suspicions to be raised, rather than reporting it to an outside authority. This will give the Company the opportunity to rectify the issue or to implement necessary changes.
Once wrongdoing has been reported, the Company must ensure that the employee is not subjected to any victimisation. If the individual has been disciplined and any warnings on their work record, plans to dismiss must be recorded correctly and be completely separate from the whistleblowing. As this could expose the Company to an unfair dismissal claim for compensation.
