WHISTLEBLOWING IN YOUR BUSINESS

How we can help:

Create a tailored whistleblowing policy to protect your business interests

Advise you about whistleblowing disputes to help reduce the damage to your business

Support you to respond to a disclosure in the correct and legal way

It is important to understand whether your employee is a whistleblower or not. Under the Public Interest Disclosure Act 1998 you must not penalise a whistleblower in response to their disclosure. Responding to a disclosure without careful thought could leave you open to claims of unfair or constructive dismissal. Even if you do not intend to treat the employee unfavourably, if you appear to do so you could face a damaging claim.

This does not mean that the employee is immune to sanction for the usual reasons, such as poor performance or misconduct. But you should take care that you can demonstrate fair and legal grounds for any sanction.

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WHEN DOES THE PUBLIC INTEREST DISCLOSURE ACT APPLY?

An employee, worker or trainee is protected when they make a disclosure in the public interest that concerns:

a criminal offence

a breach of legal obligation

a miscarriage of justice

a danger to the health and safety of any individual

damage to the environment

a deliberate attempt to cover up any of the above

The report may relate to past wrongdoing, something currently happening, or something they believe will happen soon. An opinion or allegation is not whistleblowing. The employee must have disclosed specific information – for example something they witnessed.

When deciding whether the disclosure is in the public interest, the tribunal (if the case goes that far) will consider:

whether the misconduct affects people other than the employee making the disclosure

the impact of the wrongdoing

the influence and seniority of the person or organisation responsible

Some industries, such as the finance and medical industries, are more highly regulated and may have specific regulations and procedures that deal with whistleblowing. An experienced employment law solicitor can help you to understand how the law applies to your organisation.

WHAT IF THE WHISTLEBLOWER IS WRONG?

The Public Interest Disclosure Act protects whistleblowers who have reasonable grounds for their belief. Even if you know they are mistaken, if their belief was reasonable then they will be protected by the Public Interest Disclosure Act and you must respect their rights as a whistleblower.

WHAT IF THE WHISTLEBLOWER HAD AN ULTERIOR MOTIVE?

The disclosure must be in the public interest. However, this does not need to be the sole or main motivating factor in the disclosure. A whistleblower who was not purely motivated by the public interest will still be protected.

The individual is unlikely to be protected as a whistleblower if they were dishonest or made the disclosure for personal gain. For example, if they were paid by the press for a story or made up the allegation to gain protection as a whistleblower, this is unlikely to be a protected disclosure.

If you have grounds to believe that the disclosure was made dishonestly or for personal gain, it is sensible to seek legal advice before acting on the belief.

WHAT IF THE INDIVIDUAL DIDN'T FOLLOW THE WHISTLEBLOWING POLICY?

Even if you have a policy, your staff are entitled to raise concerns externally. They will most likely be protected if they have reported the concern to a prescribed person or body relevant to the concern. External reports to somebody other than the prescribed individual or body are less likely to be covered by the Public Interest Disclosure Act.

If you find that staff frequently bypass your policy to make external disclosures, you may need to consider its effectiveness. Employees might be worried they will be penalised regardless of the policy, or they may just be unclear who to report their concerns to. It is worth reviewing your policy and workplace culture to see if changes are needed.

Find out more about why you need a good whistleblowing policy and how we can help.

CAN I ASK EMPLOYEES TO SIGN A NON-DISCLOSURE AGREEMENT?

Non-disclosure agreements (NDAs) cannot overrule whistleblowing legislation or rights to make protected disclosures. You will not be able to enforce a clause that attempts to prevent somebody making a protected disclosure, even if they signed a contract or agreement that includes non-disclosure provisions. We recommend seeking legal advice for all non-disclosure agreements, given that they have been subject to some controversy. We can help you to draft legal and ethical non-disclosure agreements, and advise on when they can be used.

If you dismiss or penalise an employee for breaking an NDA, but their disclosure is found to fall under the Public Information Disclosure Act, then the treatment will be in breach of the Public Interest Disclosure Act and you could be ordered to pay damages. We can also advise you on whether existing non-disclosure agreements apply, or if the Public Interest Disclosure Act affects your dispute.

THE COST OF A WHISTLEBLOWING CLAIM

Whistleblowing claims can be especially costly for your business as damages are potentially unlimited. It is also a type of claim where claimants can request ‘interim relief’ – that you continue paying their wage until the final hearing. The claimant only needs to have a good chance of winning the case to claim interim relief. Even if the tribunal ultimately finds in your favour you will not be able to recover this payment.

Being found to have penalised an employee for whistleblowing could also be extremely damaging to your reputation.

GET ADVICE

Whistleblowing is a complex area with a lot of factors to consider. Making mistakes can be extremely costly. If you find yourself in any dispute where a disclosure has been made It is sensible to seek advice, so that you can be sure you meet your legal obligations and don’t leave yourself open to claims.

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