Why have a whistleblowing policy?
Employees who “blow the whistle” on wrongdoing at work are protected by the Public Interest Disclosure Act 1998 (PIDA). They have a right not to be dismissed or suffer any detriment at work as a result of making a “protected disclosure”, i.e. when they:
1. Make a disclosure of information.
2. Reasonably believe that the information tends to show that one or more of the following had occurred or was 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; or
- The deliberate concealment of information about any of the above.
3. Meet other conditions, depending on who they make the disclosure to. A disclosure to the employer just needs to be made “in good faith”, but blowing the whistle to a prescribed industry regulator requires the employee also to have reason to believe the allegations are “substantially true”. Even stricter conditions apply for wider disclosure (e.g. to the press).
A dismissal will be automatically unfair if whistleblowing is the reason (or principle reason). The usual one-year qualifying period does not apply and there is no upper limit on compensation. An Employment Tribunal can also make an interim order for the continuation of an employee’s contract of employment, on full pay, pending final determination of the claim.
There are sound business reasons for employers to have a written policy on whistleblowing:
- Encouraging internal reporting of concerns at an early stage makes it easier for employers to address those concerns and avoid more serious regulatory breaches or reputational damage.
- A clear written policy should facilitate internal whistleblowing and reduce the risk that an employee will ‘go external’ (particularly to the press). If they do, they will be less likely to be protected under PIDA and you have much better prospects of enforcing your confidentially rules.
- Sending a clear message to staff and management about the importance of whistleblowing will minimise the risk that whistleblowers will be dismissed or suffer a detriment which could lead to expensive and time-consuming claims under the whistleblowing legislation.