I believe the tides are slowly changing and there is greater acceptance around whistleblowing in the workplace. The 1998 Public Interest Disclosure Act has played a major role. Intended to reassure staff and forewarn employers, the Act affords organisations the opportunity to deal with the problem internally and, crucially, avoid public scandal.
Even more recently the Enterprise & Regulatory Reform Act 2013 means that there is now a greater emphasis on making disclosures in the public interest. Workers must believe that their admissions are made to public advantage before any protection from dismissal or detriment can be reached.
Nevertheless, blowing the whistle is a somewhat risky pursuit and despite revised legislation, there remains a complex balance between the personal interests of the employee versus the commercial or organisational interests of the employer. It’s important for both organisations and staff to take steps to protect themselves, be clear what's required to make a disclosure and how to manage the legal risks.
Qualifying for whistleblower status
Not everyone will automatically qualify for protection and there are a number of stipulations when making the claim. In order to achieve protected disclosure, a number of conditions must be satisfied in accordance with the statutory framework, including being able to back up all the presented facts.
It has undoubtedly become more difficult for an employee to acquire protected status. Employers are now able to argue that the disclosure was not made in the public interest. So taking steps to make a genuine disclosure that serves public advantage cannot be stressed enough.
If an employee qualifies for protection as a whistleblower, it is open to them to pursue an employment tribunal claim following detriment or dismissal. The worker will have to establish a link between the fact that they made a protected disclosure and the way they were treated at work. In practice however, much weighs on the employer’s explanation and whether they can demonstrate a reason for their actions unrelated to any protected disclosure.
Managing the legal risks
It’s important that employers don’t shirk away from whistleblowing and face the facts in order to mitigate risk. Implementing a whistleblowing policy is a good place to start. Not only does it provide an early warning system but also allows the organisation to deal with serious failures in-house, removing any unwanted publicity. From a commercial perspective, this can also help to increase market confidence.
With a policy in place, there is no guarantee that workers will not present employment tribunal claims, but it does manage the risks. Where an employer can show that they are concerned to deal effectively with any malpractice, it is difficult for a worker to demonstrate that they behaved reasonably making the disclosures, particularly where they have failed to follow internal procedures.
Whistleblowing law has only been part of our legislation for 16 years. But it is also a complex area of law. Depending upon the facts of any particular case, different considerations may well apply. Gaining an understanding of how the legislation works is key to enabling both employers and employees to understand and effectively manage the risks.
Christopher Graham is a partner at national business law firm Watson Burton