Whether it be releasing information about MP’s expenses, concerns over the NHS, or the recent Libor scandal, whistle-blowing is very much in the public eye. But what is whistle-blowing from an employment law perspective and how is it treated?
Whistle-blowing is used to describe a situation whereby a worker, defined to include employees and also contractors acting under the control of an employer, makes a protected disclosure. Under certain circumstances, whistle-blowers are protected from being dismissed under the Public Interest Disclosure Act 1998 (PIDA) and from detrimental treatment under the Employment Rights Act 1996 (ERA 1996).
The phrase ‘protected disclosure’ here is key because to be protected by PIDA and ERA a worker must hold a reasonable belief that the disclosure falls into one or more of the following six categories of wrongdoing:
1. Criminal offence
2. Non-compliance with a legal requirement (including breach of contract)
3. Miscarriage of Justice
4. Endangerment of an individual’s Health and Safety
5. Environmental Damage
6. Concealment of any information relating to the above
Furthermore, a worker cannot just make a general allegation against an employer: for example “health and safety requirements aren’t being followed”. Instead the worker must communicate actual facts/information, such as: “the paediatric ward floor has not been cleaned for two weeks and used needles were lying around”.
Lastly a worker cannot just walk into the street and make a disclosure to a passer-by. To be protected the worker must whistle-blow to those persons listed in section 43 of ERA 1996, which includes Employers and Legal Advisers.
Unfortunately an all too common response to whistle-blowing by an employer will be one of anger, followed in some cases by detrimental treatment (such as withdrawing a bonus/overtime, docking pay, providing a bad reference etc). In more extreme cases employees may be sacked as a result of whistle-blowing, something which is automatically unfair and could result in additional compensation being awarded at tribunal.
It is worth noting that recent case law and proposed legislative changes by the Government has expanded the protection already afforded to whistle-blowers in the following ways:
1. Employers are now to be held vicariously for detrimental treatment by staff towards a whistle blower. For more details click here .
2. Protected disclosures will no longer need to be made in good faith.
3. Worker’s who are no longer employed by the Employer are protected from subsequent detrimental treatment – read our blog to find out more .
It is clear therefore that the Government and Tribunals treat the protection of whistle- blowers very seriously and great care should be taken by an employer in dealing with a worker in this situation.
If you are affected by any of the topics raised in this blog or have a separate employment query then please contact our Employment Team, who offer advice on all aspects of employment law. Call us on 020 7228 0017 or email email@example.com