Whistleblowing - don't get caught out
Call us now on
0161 618 1032 or click here
- Are your employees about to blow the whistle on you?
- Do you promote a culture of openness?
- Are you up front about risk within your organisation?
With the fallout from the financial crisis still reverberating, the political parties and Government show no signs of removing the legal protection given to those in employment who “blow the whistle” on financial impropriety or other forms of wrongdoing.
Whistleblowing refers to the act of reporting wrongdoing, whether within an organisation or externally, for example to a regulator or to the press. Following a series of high profile disasters and financial scandals in the late 80s and 90s there was a concern that many organisations had promoted a culture of secrecy where genuine concerns were hushed up and reporting them was seen as an act of disloyalty punishable by ostracism or even termination of employment.
The Public Interest Disclosure Act (PIDA) amends the Employment Rights Act to provide protection to employees from detriment or dismissal in the event that they make a “protected disclosure”. But is the system open to abuse and how far does the law protect those who act maliciously or who have mixed motives?
Whistleblowing protection
To be protected, a disclosure must be a disclosure of information which in the reasonable belief of the employee shows that one or more forms of wrongdoing had occurred or were likely to occur. These include a breach of a legal obligation, a miscarriage of justice, danger to health and safety of an individual, damage to the environment, a criminal offence had been committed, or that there had been a deliberate concealment of any of these matters.
There are further conditions which must be met by employees who are “whistleblowing”. For example, the employee must be acting in “good faith” and must generally report the matter internally first.
If an employee believes that they have been put to a detriment or been dismissed because of a protected disclosure they have made, then there is the right to complain to an Employment Tribunal ( a “whistleblowing claim”)
Case Study - Whistleblowing
Maple Tree Lodge is a care home for the elderly. Bertha, a nurse reports that she has seen A and B inappropriately restraining and then hitting out at a resident whilst pushing her in a wheelchair. The resident suffers from dementia and is prone to becoming upset and lashing out from time to time. The employer carries out an investigation. No evidence can be found to support the allegation except for the evidence of Bertha. Bertha has complained before about other matters, without any foundation. A and B now refuse to work with Bertha. The employer feels that Bertha is trying to make trouble. As the care home needs to cut staff hours, Bertha’s hours are cut.
Bertha is unhappy and resigns over the issue. She now brings a whistleblowing claim.
Employees are protected against dismissal and “detriment” which occurs by reason of them making a “protected disclosure”. The Tribunal will have to determine whether a “protected disclosure” was made, whether Bertha “reasonably believed” the incident to occur and whether she was acting in good faith.
What could the employer have done differently, to avoid a whistleblowing claim?
Whistleblowing often raises difficult matters which require careful investigation. Proper evidence will be required before the employer can conclude that Bertha is not acting in good faith. It may have been better to conclude that insufficient evidence could be found to support the allegation and to have resisted the temptation to take any action which could create the impression that she has been put to any detriment (for example cutting her hours) by reason of having made a disclosure.
Disclaimer – The contents of this page are provided for general guidance only and do not replace the need to obtain legal advice about any given situation.
