Whistleblowing protections - Who? What? When?

You might have seen in the recent press reports on the Supreme Court case of District Judge Claire Gilham, whom the SC found to be a ‘worker’. This important categorisation of her employment status has established her full ‘worker’ rights – in this case centring on the duty for the Ministry of Justice (the employing entity) not to treat her detrimentally in connection with her raising concerns surrounding ‘systemic failings in the court administration.’  Defined as a worker, Judge Gilham is now able to take her whistleblowing claim to the employment tribunals. 

You can read our previous blog on differences between the three ‘worker’ statuses of employee, worker and self-employed here.  Essentially, in the whistleblowing context, both employees and workers benefit from legal protection should they raise concerns about certain serious issues at work, whereas the self-employed and ‘office holders’ do not.  The SC’s decision in this case has set an important precedent establishing not only that judges are workers, protected from suffering any detriment for raising concerns about their employing business; but it also has wide implications for equality law – enhancing the independence of officers of our justice system.

Back to basics – what is this protection?

But what is whistleblowing, and how does it affect an employee/ worker’s rights and protections, and the business’ obligations towards them?

Whistleblowing is the statutory right of an individual worker or employee to make an honest disclosure of information which they believe shows that one of the following has occurred or is likely to occur:

• A criminal offence;
• Breach of any legal obligation;
• The miscarriage of justice;
• Breach of health and safety regulations/ policies;
• Damage caused to the environment; and
• The deliberate concealment of any information concerning the above.

Broadly, if these criteria have been met, the disclosure will be deemed to be legally ‘protected’.  The legislation encourages that the disclosure be made internally, but it may be made directly to public bodies in appropriate cases (including to HMRC, MPs, the Health and Safety Executive or specific industry regulators, for instance).  To benefit from protection the individual must also reasonably believe that their statements are being made in the public interest. 

The dismissal of a worker or employee will be automatically unfair if the principle reason is that the individual has made a protected disclosure.  Further, it is unlawful for an employer to subject a worker or employee to any detriment (being threats, loss of pay or disciplinary action, for example) on the grounds that they have made a protected disclosure. 

Reducing business risk

Ensuring such protection for whistle-blowers is important for businesses for various reasons; including avoiding unnecessary litigation or criminal liability, protecting staff morale and behaviours, controlling risk and limiting potential reputational damage.  If an individual is aware that their genuine concerns over serious issues will be heard and respected internally, without personal risk to them of detriment or dismissal, issues can be resolved internally without the need for public awareness to be alerted. 

Good practice points for employers to be aware of include:

• Implementing a whistleblowing policy setting out the process through which staff can submit in confidence concerns or comments about illegal, immoral or unacceptable behaviour or practices;
• Advertise and promote this policy internally and ensure that managers are trained in its principles and how it works;
• Investigate disclosures promptly, and keep the individual informed as to progress (so reducing the likelihood of that disclosure being made externally);
• Make clear in the business’ behaviour (or equivalent) policy that the victimisation of a whistle-blower will not be tolerated;
• Consider introducing and promoting a whistleblowing hotline or email address to which internal concerns could be raised confidentially; and
• Note that the business cannot rely on contractual confidentiality clauses, or ‘non disclosure’ clauses in any settlement agreements, to ensure that disclosures will not be raised with external bodies: these clauses will not be enforceable if the disclosure is ‘protected’. 

If you are interested to find out more information about Employment Law, please check our Events website section  and sign up for one of the future webinars we are hosting: Terms and Conditions, TUPE or Flexible Working.

If the Employment team can be of any assistance in connection with whistleblowing rights, policies or concerns, please do not hesitate to get in touch with us by contacting any of our offices: Banbury, Bicester, Rugby and London.

Alternatively, you can contact us directly on 01295 270999 or visit our website.

Please treat the contents of our blogs as general guidance only. Please do not take any action based on their contents unless you have sought specific legal advice. Brethertons cannot accept responsibility for any errors or inaccuracies, loss or damage in circumstances where there is no formal retainer between us and we have not given you personal and specific advice relating to a matter for which you have given us full background details.  You must also bear in mind that the contents of our blogs are based on English Law, and because they contain archival material, that material is likely to go out of date. Therefore, it is important to consider the date that the blog was posted. Please also remember that the law may differ in different Jurisdictions.