In contrast to previous times when such conduct was considered by an employer to be a breach of an employee’s duty of good faith towards their employer, we live in a time in which authorities actively encourage employees to “blow the whistle”. In virtually all Non-Disclosure Agreements and Settlement Agreements, which provide for confidentiality and a compromise of most claims by the employee in the future, the right to “make a protected disclosure” (the formal wording for “whistleblowing”) is carved out, so preserving that right for the employee even after the “gagging document” is signed. This is to ensure that an employer cannot rely on the existence of such a document to avoid its obligations and escape sanctions relating to, for example, its criminal activity. In short, it cannot buy its way out of such breaches.
So, what is “whistleblowing”?
“Whistleblowing” is the term used when a worker passes on information concerning wrongdoing. The wrongdoing will frequently be something they have witnessed at work. To be covered by the law, a worker who makes a disclosure must reasonably believe that (1) they are acting in the public interest, and (2) the disclosure tends to show past, present or future wrongdoing, relating to one of seven categories in the Employment Rights Act 1996. Examples of those categories are criminal offences, miscarriage of justice, or damage to the environment. The legislation prevents a worker who blows the whistle from suffering a detriment because of that, and any dismissal as a result of blowing the whistle will be automatically unfair. This has the advantage to the individual of not requiring a minimum of 2 years’ continuous employment which they would require in normal unfair dismissal claims.
As can be seen from the first limb of the whistleblowing requirements, personal complaints or grievances are not covered by the legislation although being a relatively new phenomenon, case law governs the evolving application of this. Employees often consider that they are blowing the whistle when in fact their complaint is a personal grievance. An employer’s grievance and whistleblowing policies should make the distinction clear.
An employee who considers themselves to be at risk of dismissal for another reason may blow the whistle to their employer on a workplace practice, on the presumption that this automatically protects them. It does not have this effect. The legislation merely provides that a worker cannot lawfully be subjected to a detriment as a result of blowing the whistle. In the event that the employee would have been sanctioned or dismissed anyway, the act of blowing the whistle will not prevent that. It does, of course, provide an evidential difficulty for the employer to show that the sanction or dismissal was for an unrelated reason.
An organization which has a clear policy regarding whistleblowing shows that it is happy to listen to the concerns of its workers. But having such policies is not only altruistic – workers are often the first people to witness wrongdoing within an entity, and their disclosed information may serve to prevent that continuing. By bringing it to the attention of the company management, it should prevent the wrongful conduct continuing and the possible reputational damage that may follow. Management are likely to encourage whistleblowing in those circumstances.
Meaby & Co are lawyers experienced in all aspects of employment issues. Should you require advice on any aspect of employment law, including the above, please contact Chris Marshall on 0207 703 5034.