Each month we will feature a short explanation of a piece of employment jargon with the aim of highlighting to employers key points to be aware of within the jargon featured.
This month we are looking at whistle blowers.
A whistle blower is an employee, or a worker (“A”) who has made a protected disclosure of information, usually, but not necessarily in writing, that in the reasonable belief of A shows that one of the following has occurred, is occurring, or is likely to occur:-
A criminal offence.
- Breach of any legal obligation.
- Miscarriage of justice.
- Danger to the health and safety of any individual.
- Damage to the environment.
- Deliberate concealing of information about any of the above.
A must also reasonably believe that the disclosure is “in the public interest”.
The Public Interest Disclosure Act 1998 (“PIDA”) protects employees and workers from being dismissed, or subjected to a detriment, because they have made a protected disclosure.
The dismissal (including constructive dismissal) of an employee will be automatically unfair if the reason, or principal reason, is that they have made a protected disclosure. The same applies to selection for redundancy. There is no qualifying minimum period of service, and Tribunals are not restricted by the usual limits on compensation. Whistleblowing claims are sometimes used tactically by employees for this reason.
It is unlawful for an employer to subject one of its workers to a detriment (including threats, disciplinary action, loss of work, or pay, or damage to career prospects) on the ground that they have made a protected disclosure. The definition of a worker is broad and includes agency workers, freelance workers, seconded workers, home workers and trainees, as well as employees.
An employer can be vicariously liable for the act of a worker in subjecting a whistle blower to a detriment.
PIDA encourages disclosure to the employer as the primary method of whistleblowing. However, disclosures to external parties will also be protected in some circumstances.
Parliament has approved a list of “prescribed persons” to whom workers can make disclosures, provided the worker believes the information is substantially true and concerns a matter within that person’s remit. There is no need to tell the employer first. Prescribed persons include HMRC, The Health & Safety Executive, The Office of Fair Trading, the Charity Commission, Members of Parliament and many industry regulators.
Providing effective protection for whistle blowers is important for employers as it enables the internal control of risk, avoids unnecessary litigation, limits reputational damage and protects staff morale. It can also be important to avoid criminal liability.
For any advice on regulating, or dealing with whistle blowing complaints in your workplace, please do not hesitate to contact a member of the Jacksons Employment Law Team.
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