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May 12, 2020

As an employer or HR manager, have you pondered whistleblowing within your organisation, in relation to the ongoing Coronavirus pandemic?

Everyone wants to work in a safe environment, and so it could be worth thinking about the legalities which are associated with whistleblowing in this context.

That's what we will focus on in this blog.

Complaints or refusal to work

You may have wondered what the implications are should an employee refuse to work, or complain about their working environment.

This type of refusal or complaint can be considered a Protected Disclosure - that is, a qualifying disclosure made by a worker, fulfilling specific requirements in the Public Interest Disclosure Act 1998 which protects them against "dismissal and victimisation".

This is because COVID-19 throws up many health and safety concerns, and the employer is obliged to ensure a safe working environment.

When is an employee entitled to whistleblower protection?

There are certain requirements which must be met if communication from an employee is to be considered a Protected Disclosure, meaning that the employee can expect to be protected as a whistleblower.

There should be a disclosure of information, which means a proper explanation of an allegation including all the important facts, rather than simply telling somebody about a concern.

The disclosure of information can be in either written or oral form, or via photos and video.

It is also key that the individual making the disclosure is doing so in the public interest. But there can also be an element of self-interest.

"Reasonable belief" is another important factor - that is, the individual must provide information which they believe demonstrates risk at least one of six categories.

The following three of which are relevant during the current COVID-19 pandemic

  • a person is failing to comply, or will probably fail, to comply with a legal obligation (in this case an employer's legal obligations);
  • there is a likely danger to the health and safety to any individual;
  • and that there has been, or is likely to be a concealing of information, which has served to hide the failure of compliance with legal obligations.

Who are Protected Disclosures given to?

In the case of a Protected Disclosure, the recipient of the information needs to be;

  • the employer of the individual making the disclosure,
  • another person to whom the relevant failure mainly relates to, 
  • a person who has legal responsibility for a failure (other than the employer),
  • a person specifically sanctioned by the employer to receive disclosed information,
  •  a legal advisor,
  • a Member of Parliament,
  • or organisations which are intended to receive complaints from the public (such as the Health and Safety Executive). 

But it should be noted that other people or bodies could be furnished with the information, so long as the information is true and that the disclosure will not be made for personal gain.

When does an employer become a whistleblower?

Providing the conditions above are satisfied, making the communication a Protected Disclosure, an employee who refuses to work or makes a similar complaint can be considered as a whistleblower.

An individual considered a whistleblower will be entitled to protection under the Employment Rights Act 1996; both from dismissal and other types of detrimental treatment.

How are whistleblowers protected?

Whistleblowers are protected by the Employment Rights Act 1996 - firstly, they must not be subject to "detriment" because they made a Protected Disclosure.

And also unfair dismissal will come into play if they are dismissed because they have made a Protected Disclosure.

How can employers limit their exposure to whistleblower claims?

There are a few ways in which employers can protect themselves from such claims.

In the first instance, it can be wise to treat complaints and concerns as Protected Disclosure, even if you are not sure that such communication constitutes a Protected Disclosure.

Because it can sometimes be hard to ascertain if a communication is a Protected Disclosure, it can be best to assume it is, and focus on ensuring that the employee experiences no detrimental treatment as a result of the disclosure.

Even for cases in which the communication is judged not to qualify as a Protected Disclosure, you should be aware that detrimental treatment of any kind could be recognised as a breach of confidence and trust, potentially leading to unfair dismissal.

As an employer, you should ensure that your co-workers and agents are aware they shouldn't give any detrimental treatment to a colleague because they have made a Protected Disclosure.

That's because the Employment Rights Act also makes co-workers liable, making the employer liable for the co-worker's behaviour.

If you do work with agents, you should take the same approach and ensure that there is no detrimental treatment from them towards employees considered whistleblowers.

Making a swift response

You should be aware that employment tribunals can look at the response which you made to the Protected Disclosure, allowing you to demonstrate that you took the concerns seriously.

This can be important evidence when seeking to prove that any future dismissal is unrelated to the Protected Disclosure.

In this respect, it is always important to make a separation between a certain communication - be it a complaint or refusal to work - and another legitimate matter concerning the employee.

Objecting to a Protected Disclosure

While you cannot expect to legitimately object to a Protected Disclosure during the COVID-19 outbreak, you might choose to object to the manner in which complaints have been raised.

For example, if a complaint has been raised in a threatening way.

You must ensure that all your decision making is well reasoned and recorded as accurately as possible so that you can provide the best evidence in such a situation.

If navigating the COVID-19 outbreak as an employer or HR manager can seem like a legal at minefield at times, you should know that you aren't alone.

If you have any questions on whistleblowing and Protected Disclosure in relation to the COVID-19 outbreak, call Neathouse Partners on 01244 893776.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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