The importance of understanding whistleblowing for employers

Not all whistleblowing is as dramatic as the movies might have us believe.

Workers across the country are whistleblowing every day through comments made in grievances, resignation letters, e-mails or in verbal conversations. Some see themselves as whistleblowers and others do not.It is important for employers to be able to identify an act of whistleblowing because:

• Employees who are dismissed for whistleblowing are automatically deemed to have been unfairly dismissed, irrespective of their length of service;
• Compensation for such an automatic unfair dismissal is unlimited and is not subject to the usual cap on unfair dismissal compensation;
• Workers and employees are also protected from being subject to detriments as a result of whistleblowing.
• Individual directors and employees can be held personally liable for subjecting whistleblowers to detriments.

Employment law classifies whistleblowers as those who make a “protected disclosure”. There are four elements of a protected disclosure:

1. Disclosure of information

The worker must disclose information. Disclosing information goes beyond merely making an allegation. An example of the distinction is given by case law, in relation to the state of a hospital. The worker saying “You are not complying with health and safety requirements” would be an allegation, rather than a disclosure of information. A disclosure of information would be saying something like, “the wards have not been cleaned for the past two weeks. Yesterday, sharps were left lying around.”

2. Unlawful activity

The information that is disclosed must tend to show unlawful activity, but need not be about criminal activity, and it could relate to any breach of a legal obligation by an employer. The unlawful activity can therefore range from large-scale fraud or criminal health and safety and environmental offences at one end of the scale down to breaches of individual customer or employee contracts.

3. Reasonable belief

The worker must have a reasonable belief that there is unlawful activity happening, but they do not have to be correct in that belief. To be protected as a whistleblower, the individual does not have to show that what they are saying is true, but rather only that they have a reasonable belief that it is true.

4. Public interest

The final element of a protected disclosure is that the individual must have a reasonable belief that the disclosure is made in the public interest. This means that if an individual is complaining only in their own interests about their own treatment, this will not make them a whistleblower. For example, an employee raising a grievance about not being paid a bonus in breach of their contract of employment will not be a whistleblower. However, an employee raising a complaint that their large employer has been manipulating their accounts to avoid paying bonuses to all of their employees might be considered to be a whistleblower.

A not uncommon issue that arises for employers is how to deal with an individual who has raised concerns that might amount to whistleblowing, but has done so in a disruptive or inappropriate manner. The employer may want to take disciplinary action against the employee, but needs to be careful to separate the act of the whistleblowing (for which the individual should not be disciplined) from the manner of the whistleblowing. This can be a very fine line and requires careful consideration. Falling the wrong side of this line can lead to significant exposure for an employer.

If you have any queries on this article, get in touch with Matt McBride.