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Whistle blowing

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Whistleblowing Overview

1. Legal Protection for Whistleblowers

Protection for whistleblowers was introduced by the Public Interest Disclosure Act 1998 (PIDA), which amended the Employment Rights Act 1996 (ERA 1996). Employees and workers who make a protected disclosure are protected from being subjected to a detriment or dismissed because of making that protected disclosure.

It is important to note that the usual requirement for a minimum period of qualifying service when bringing an ordinary unfair dismissal claim does not apply when the dismissal (including constructive dismissal) is because of a protected disclosure. Further, the usual upper limit for compensation on ordinary unfair dismissal claims does not apply in whistleblowing cases.

For further information see Dealing with Whistleblowing [FS21.02].

2. What constitutes a Protected Disclosure?

In order for the employee or worker to obtain protection as a whistleblower they must have made a protected disclosure. To be a protected disclosure there must be a disclosure of information that, in the reasonable belief of the employee/worker, tends to show that one of following has occurred, is occurring, or is likely to occur:

  • A criminal offence;
  • Breach of any legal obligation;
  • A miscarriage of justice;
  • Danger to the health and safety of any individual;
  • Damage to the environment;
  • The deliberate concealing of information about any of the above.

The employee/worker must also reasonably believe that the disclosure is "in the public interest", there is no requirement that the disclosure be made in good faith.

The disclosure can be made to the employer (an internal disclosure), this is encouraged by the legislation. However, certain external disclosures will also attract the protection. There is a Parliament-approved list of prescribed persons to whom the employee/worker can make disclosures, without any need to disclose to the employer first. The current list of prescribed persons includes HMRC, the Health and Safety Executive, the Office of Fair Trading, the Charity Commission, Members of Parliament and named industry regulators.

3. Effective Whistleblowing Policies

A written Whistleblowing Policy will be an important document for most employers. For some employers in the financial services sector there are additional obligations meaning that a written Whistleblowing Policy becomes an essential requirement.

Allowing and publicising a route for employees and workers to confidentially raise concerns with their employer is important for many reasons. A key objective for any Whistleblowing Policy is to seek to give individuals a safe route to raise their concerns internally, which should minimise the risk of those concerns being raised externally as a first option. This allows the employer to have more visibility and control when managing risks, reduces reputation damage and improves staff morale if it can be seen that appropriate action is being taken in response to concerns.

Another key purpose of the Whistleblowing Policy is to avoid criminal liability for the employer in connection with corporate offences under legislation such as The Bribery Act 2010 (failing to prevent bribery by employees) and The Modern Slavery Act 2016 (publishing an annual statement setting out the steps taken to ensure that slavery and human trafficking is not taking place in any of its supply chains, or in any part of its own business). An effective Whistleblowing Policy will assist with showing that the employer has appropriate procedures and protections in place to encourage reporting of concerns relating to bribery, slavery, etc.

The Home Office has published updated guidance on Transparency in Supply Chains to explain how businesses should comply with the Modern Slavery Act. A copy of the updated guidance is available at:

 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/649906/Transparency_in_Supply_Chains_A_Practical_Guide_2017.pdf

An employer may want to widen the scope of the matters covered by their Whistleblowing Policy, to extend beyond those matters capable of being Protected Disclosures under the legislation. Employers will want to know about other issues that are important to the business (such as unethical conduct, breach of internal procedures or professional rules) so encouraging openness from individuals in reporting concerns will be beneficial. Each employer will have to consider what is important to them to have reported under this policy.

Employers should not encourage employees to raise whistleblowing concerns under a Grievance Procedure, the existence of a separate Whistleblowing Policy will help to keep these two routes separate. Grievance procedures are intended to deal with a situation affecting the complainant personally, rather than wrongdoing of a more general nature. For more information on grievances see Grievance Procedure Toolkit [T8.01].

For a template policy see Whistleblowing Policy [P21.01]. Please note that this is not suitable for some financial services sector employers.

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.