Human beings are apt to complain about things, be it home life or work, and since, for the majority of us at least, work absorbs a significant amount of our time, it is indeed an area ripe for complaint.
Personal gripes are one thing and in such cases the sensible employer will nip the problem in the bud with an informal chat. If an employee raises a grievance, the employer may well exhale with a sigh, dust off its grievance policy and procedure with the aim of resolving the issue, and hope that whatever outcome it decides upon, will satisfy the disgruntled worker. Wishful thinking.
Written grievances can be long and convoluted, but an employer should fail to read them at their peril. What is buried within the text, might amount to a protected disclosure, or ‘whistleblowing complaint’, spelling a wider and more serious obligation.
It is also possible for a series of communications taken cumulatively (for example a number of emails) to amount to a disclosure, even though an individual communication might not qualify. This is another trap for the unwary.
A qualifying protected disclosure is any disclosure of information which in the reasonable belief of the person making the disclosure, is made in the public interest, and tends to show that an offence has been committed, is being committed or is likely to be committed.
As well as the need for altruism on the part of the whistleblower, a disclosure must amount to more than a mere assertion or allegation. It has to have “sufficient factual content and specificity”, so said the Court of Appeal in the case of Kilraine vs London Borough of Wandsworth.
Take for example Mr Corbusier, who works on a publicly funded building project, such as a hospital. He raises a grievance about his pay. He’s done this several times before and is known for complaining. Within his latest grievance, he also states: “The site manager is committing fraud”. Does this constitute the disclosure of information?
The employer would do well to investigate the matter at any rate, but if it went further and removed him from site, the question then is whether this would amount to a detriment for blowing the whistle. It’s unlikely.
The employee has made an allegation, but this is not likely to be sufficient for the employer to be on notice of a qualifying protected disclosure. If instead he wrote, “On 28th September, I saw workers putting building materials in their vans, and paying the site manager to keep quiet about it,” this is likely to amount to the disclosure of information.
The dividing line between an allegation and information can sometimes blur, however. The judiciary has warned against an overly rigid dichotomy, since the two can become entwined.
This was the case in Simpson vs Cantor Fitzgerald where the Court of Appeal recently decided that sometimes a statement which can be characterised as an allegation, will also constitute “information”. Take our allegation of fraud, for example, if taken in the context of other more detailed exchanges.
Ignoring a grievance or complaint can be a dangerous thing to do. It might cause unrest and dissension if the whistleblower draws others in, or if the whistleblower makes a wider disclosure to a regulator (in the case of regulated employers), or to the press, as sometimes happens if an employer fails to deal with a complaint.
The lesson is, if you hear a whistle blowing, don’t run the other way. Investigate the matter thoroughly, and deal with it promptly. De-escalation could save time, money, and the reputational damage that a wider disclosure could bring.
Meredith Hurst is employment law partner at a specialist law firm Thomas Mansfield Solicitors