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Whistleblowing Legal Advice for Employees & Executives

Unfortunately, from time to time unlawful conduct occurs in the workplace. In these situations the law may be able to protect employees who report the wrongdoing they have witnessed at work.

This protection exists to prevent staff members who have blown the whistle from being bullied or disadvantaged at work, and to encourage disclosures that are in the public interest.

The main piece of legislation that applies to whistleblowing is the Public Interest Disclosure Act 1998. This Act and the whistleblowing case law to date have created a complex body of law, particularly when it comes to the public interest test, which is best tackled with the support and representation of a leading law firm with expertise in whistleblowing cases.

We are a team of highly experienced employment law solicitors, known for our exceptional track record for success in contentious cases against large employers based in the capital. 

100% Success Rate in Contentious Cases for both Employees & Employers

Contact our employment lawyers on 02071674800 or contact us online.

Introduction to the law

Under the Public Interest Disclosure Act 1998, there are three main components that must be fulfilled before the law can offer protection to an employee who raises concern about wrongful conduct they have seen at work.

  1. The whistleblower must come within the definition of a “worker”.
  2. The content of their complaint must be considered a “qualifying disclosure”.
  3. The whistleblower must disclose the information to the appropriate person or body and in the appropriate way.

If all elements are satisfied, the employee has a right not to suffer detriment or to be unfairly dismissed. If a worker receives such treatment, they may be able to claim for compensation through an employment tribunal. If you want to know whether you qualify for protection for making a disclosure in the public interest, our team can help. We will assess your situation, explain the law to you in straightforward terms and offer advice on the best strategy to take. 

Who is a “worker”?

To be protected for whistleblowing you must be one of the following:

  • an employee;
  • an agency worker;
  • self-employed;
  • a trainee; or
  • a member of a limited liability partnership (LLP).

What type of information is a “qualifying disclosure”?

The concerns raised at the workplace should be genuine concerns, that in your reasonable belief the acts or omissions of the employer tend to show that:

  1. A criminal offence had been committed, was being committed or was likely to be committed. Examples of criminal offences include financialirregularities, breach of director’s fiduciary duties, bribery and trafficking.
  2. The employer had failed, was failing or was likely to fail to comply with a legal obligation to which it was subject. Examples include acts of discrimination, acts of bullying and harassment, breach of safeguarding involving children or adults and legislation affecting terms and conditions at work.
  3. A miscarriage of justice had occurred, was occurring or was likely to occur. Examples of miscarriages of justice include someone being penalised for acts of someone else and victimisation for the acts and omissions of others.
  4. The health or safety of persons or groups of staff or service users had been, was being or was likely to be endangered. Examples include unsafe machinery, exposure to unsafe chemicals and retention of records for the health and safety executive.
  5. The environment had been, was being or was likely to be damaged. Examples include asbestos being buried on the premises and non-disposal of unsafe machinery.
  6. Any matter falling within one or more of the preceding five categories had been, was being or was likely to be deliberately concealed. Examples include tampering with records to conceal critical details and creating false records.

It does not matter if the conduct you have complained of turns out not to be any of the above. What matters is that you reasonably believed that one of these acts or omissions had occurred and that your motivation for making the disclosure was one of public interest.

How should “qualifying disclosures” be made?

You must follow the formal procedure when making the disclosure, otherwise you may not get the protection of the law or your compensation award may be reduced. In most cases, employees are encouraged to report the matter internally in the first instance, for example to someone who has the ultimate responsibility for the employee concerned, and to follow any policies on whistleblowing.

If you decide not to deal with the matter internally, you will only be protected if you report the wrongdoing to one of the people or bodies within the Government’s prescribed list. The most appropriate person or authority to notify will depend on the nature of the conduct you have witnessed. Some of the relevant organisations include the Financial Conduct Authority, Ofcom and HMRC.

In terms of the content, disclosures must include specific information to back up your concerns. For example, your employment rights will not be protected if you simply raise a concern that acts of discrimination are happening in your workplace. You should provide examples of what you have witnessed.

The disclosure can be made by verbal and/or written communication. Emails, letters and other such records between you and your employer/relevant person or organisation should be kept and stored safely.

What information is in the public interest?

The public interest test is the most complicated part of the law on whistleblowing. Whether information is in the public interest or not is determined on a case by case basis. Generally, the information that is disclosed must be of concern to more people than just the employee him or herself. So, a compliant about your terms and conditions of employment would not be considered in the public interest, unless it can be shown that they affect a section of the public.

On the other hand, the test is not prohibitively wide. Even if it can be shown that the malpractice impacted on a relatively small group of staff, it may be sufficient to satisfy the test. This is because, if the wrongdoing remains unchallenged this could set a precedent and result in the repetition of the conduct. As the public interest test is so complex, it is a good idea to get advice from a whistleblowing solicitor on whether your situation is likely to satisfy the test.

A protected disclosure that is in the public interest overrides the implied duty of confidentiality to the employer. As such, an employee cannot be gagged.

Detriment claims

One type of claim that can be pursued if you have been disadvantaged for making a protected disclosure is known as a detriment claim. Examples of victimisation that will support this type of claim include:

  • failure to act regarding concern of malpractice (there is a presumption of failure to act if the employee is not informed of an investigation or its outcome);
  • contractual variation, without consultation, with regard to status (demotion), management duties and reducing elements of the job description;
  • discriminatory treatment;
  • attempts to gag the employee; and
  • unfair appraisal processes with adverse and unwarranted comments about performance.

The burden is on the employer to show that the protected disclosure did not significantly influence their actions towards the employee. The employer’s motive or intention is irrelevant.

Causation for a dismissal claim and burden of proof

Unfortunately, it is not unusual for the employer to dismiss an employee following a protected disclosure. However, the pretext for dismissal is normally for another reason, such as performance, misconduct, selection for redundancy, allegations of breach of statutory duties (which may have been acceptable from the employee and the other staff).

It is for the employer to prove that the whistleblowing was not the reason for the dismissal and provide an alternative reason. The tribunal would analyse the mental processes (conscious or unconscious) of the employer for its actions.

In both types of claim, the evidential burden will be on the employee to show that there was a link between the detriment and/or the dismissal. 

Automatic and ordinary unfair dismissal

The employer is obliged to provide the correct reason for the dismissal. If the principal reason for the dismissal is that an employee made a protected disclosure, it renders the dismissal automatically unfair. In this case, the tribunal will not consider whether or not the employer’s actions were reasonable.

Practical considerations

  • Ensure that the internal whistleblowingpolicy is complied with.
  • If there is no whistleblowing policy, then rely on the grievance policy.
  • Ensure that you appeal any unfavourable outcome of the complaint.
  • Keep records.

Early conciliation via ACAS

It is a mandatory requirement to refer the dispute to ACAS, to allow for negotiations to take place with a view to reaching a settlement and avoiding presenting a claim to the tribunal. Given the adverse publicity and the expense the employer will attract, the employer may settle and offer a fair exit package at this stage.

Time limits

Time limits are strictly imposed, unless there are extenuating circumstances. An employee must bring a claim for unfair dismissal within three months (minus 1 day) of the effective date of termination. For example, if the effective date of termination is 21 January, the deadline to present a claim is 20 April 2017. However, the Early Conciliation process automatically increases the time by a month.

With regard to whistleblowing and discrimination claims, the time limit is 3 months starting with date of the last act (including a dismissal) or failure to act. Conduct occurring over an extended period would mean that claim is brought within three months of the end of that period. If you present an internal appeal you still have to comply with the time limits, even if the process has not been concluded.

Qualifying periods

Unlike dismissalswhistleblowing and discrimination claims do not require the 2-year period of service. For example If the date of dismissal is 6 January, with the notice period of 1 month, the effective date of dismissal will be 6 February 2017, entitling the employee to claim unfair dismissal. If summarily dismissed for gross misconduct, the employee is unable to claim ordinary unfair dismissal, but can still pursue a claim for automatic unfair dismissal.

Remedy

The options available are:

  • Compensation
  • Re-engagement
  • Re-instatement
  • Declaration

Damages

There is no financial cap on compensation for whistleblowing claims where the detriment is a dismissal. The current cap for ordinary unfair dismissal claim is £78,962.

If the employer’s grounds of dismissal are for reasons of a redundancy, and it is unable to show that the principal reason for dismissal was not in fact redundancy, then the basic award will not be reduced and offset against the redundancy pay, if the grounds of dismissal are redundancy.

To make a claim for injury to feeling an employee does not have to produce medical evidence of injury to feelings, but it helps.

An application for an interim relief is possible, to be applied within 7 days of termination. The threshold is high for prospects of success.

Main heads of claim governed by statute:

  • Basic Award.
  • Compensatory Award.
  • Injury to feelings (whistleblowing or sex discrimination).
  • ACAS 25% uplift (non-compliance of Code of Practice).

Whistleblowing Lawyers, London

Our team of expert employment lawyers are specialists in advising and representing City staff who become involved in whistleblowing matters. We are an approachable team that always acts in the best interests of our clients. If it is your aim to maintain a healthy relationship with your employer, we will use our expert negotiating skills to ensure there is minimum impact on your job. Where this is not possible, we can build a robust case on your behalf to ensure you are compensated for any unfair treatment.

If you’re facing difficulties at work don’t hesitate to get in touch with us. 

100% Success Rate in Contentious Cases for both Employees & Employers

Contact our employment lawyers on 02071674800 or contact us online.

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