Whistleblower Protection

It takes tremendous courage to officially report serious wrongdoing at work but the unlawful backlash whistleblowers face for their bravery remains an ongoing concern.

A worker who exposes serious misconduct or illegal activity, which they witness or are aware of in their workplace is granted whistleblower status [1] cited 28.5.24

Any concern raised should be in the public interest. Legal protections are in place for whistleblowers, which should ensure they do not suffer any type of unfavourable treatment or lose their job for making a disclosure.

In the UK, whistleblowers are protected by the Public Interest Disclosure Act 1998  [2] cited 28.5.24  This law provides rights for workers to take a case to an employment tribunal if they have been victimised at work or have lost their job because they have 'blown the whistle.’

The matter of concern raised and reported by an employee can be regarding events that have occurred, are currently occurring, or are anticipated to occur.

Whistleblowing can have negative consequences for both employer and employee. For an employer it can severely damage its reputation and have wide ranging and damaging repercussions. For an employee, it can lead to bullying or even result in them losing their job.

Whistleblowing-related cases have made recent news headlines.

Last week the former chief executive of the Post Office, Paula Vennells, faced questioning at the Post Office inquiry about her role in the wrongful prosecution of hundreds of sub-postmasters [3] cited 28.5.24

The inquiry is examining how a flawed IT system led to the wrongful conviction of hundreds of sub-postmasters who were accused of fraud or false accounting after the computer showed money was missing from their branch accounts.

It was a male whistleblower who first revealed that staff from Fujitsu could secretly alter sub-postmaster's accounts on the Post Office's Horizon computer system [4]  cited 28.5.24

His testimony marked a turning point for sub-postmasters fighting to prove their innocence after the Post Office held them responsible for financial shortfalls.

A worrying report recently published in a national newspaper was headlined: The four-step ‘playbook’ the NHS uses to break whistleblowers [5] cited 28.5.24

It was said that NHS managers use a playbook of tactics to silence whistleblowers that is “designed to break you”, according to doctors who have tried to raise patient safety concerns.

The newspaper investigation is said to have found so many similarities in the way different NHS trusts and clinics deal with whistleblowers that many doctors believe the problem is systemic.

The report described how doctors complain of bullying and harassment, both from managers and colleagues, which they claim creates a culture of cover-up.

Whistleblowers are said to be investigated, face disciplinary hearings and legal battles until they succumb to the personal, professional and financial pressure and quit.

The pattern is reported as being not dissimilar to the punitive measures – including suspensions and contract terminations – employed by the Post Office against its sub-postmasters and employees during the Horizon IT scandal.

The four-steps said to be used to break whistleblowers are listed as:

Step 1: Investigate the whistleblower

Step 2: Bully and intimidate

Step 3: Demotion, disciplinary action and dismissal

Step 4: Weaponise General Medical Council referrals

While in the financial sector a report said there was a reluctance among employees to report serious wrongdoing [6]

Of the 504 professionals questioned, 47 per cent said there was not enough protection for whistleblowers. Additionally, 46 per cent feared the accused would turn on the whistleblower, and recriminate the whistleblower.

It was also reported that professionals have witnessed whistleblowers shunned by colleagues (43 per cent); kept out of decision-making (43 per cent); being moved to different teams (33 per cent); and called derogatory names both to their face and behind their backs (32 per cent).

The aim of whistleblowing should be to encourage employees to come forward and voice their concerns. Workers are usually the first to recognise that something is seriously wrong.

Reporting matters should be viewed as a positive act, as it can make a valuable contribution to any employer’s efficiency and long-term success.

It is essential that all employers, regardless of the size of an organisation, understand the importance of whistleblowing.

Knowing how to treat and protect employees courageous enough to make disclosures is vital, as the cost of failing to do so could be significant.

A whistleblowing drinks executive was awarded £1.63 million after he was unfairly dismissed following his objection to a 30 per cent pay cut for 2,000 workers during Covid [7]

So, let us take a closer look at whistleblower protection, including what constitutes unfavourable treatment and the potential consequences for mistreating whistleblowers, and what to do if they are wrong.

What counts as a whistleblowing disclosure?

By law, there are several issues any employee can whistle blow about, which are called ‘qualifying disclosures’ [8] cited 28.5.24

Qualifying disclosures include:

• A criminal offence – for example, if an employer has been trying to bribe people.

• The breach of a legal obligation by an organisation – for example, if an employer has neglected their duty of care towards children in a care home.

• A miscarriage of justice – for example, if a member of staff has been fired for something that turned out to be a computer error.

• Someone's health and safety being in danger – for example, if an employer has forced staff to serve food they know has been contaminated.

• Damage to the environment – for example, if an employer has been regularly polluting local rivers.

An employee can also whistle blow about someone trying to cover up information about any of these issues, and they can report one or more qualifying disclosures.

Treatment of whistleblowers

An employee who is a whistleblower should be treated fairly and not be subjected to any type of unfavourable treatment as a direct result of making a disclosure.

Protection from unfair dismissal: If an employee is dismissed as a result of whistleblowing, it is considered an automatic unfair dismissal. Employers should not retaliate against whistleblowers by sacking them.

Detriment: Whistleblowers are also protected from suffering any disadvantage. The individual should not be subjected to any treatment that is worse than before, or that worsens their situation because of a disclosure. The type of treatment whistleblowers are protected from includes demotion, harassment or exclusion.

Non-disclosure agreement: Settlement agreements with confidentiality clauses (often called ‘gagging clauses’) are not valid if an employee is a whistleblower. Such clauses cannot prevent employees from reporting wrongdoing.

Consequences of mistreating whistleblowers: Whistleblowers subjected to unfair treatment can make a claim at an employment tribunal. It can lead to an employer incurring significant financial costs to defend itself against a claim and penalties for any mistreatment considered proven. Mistreating whistleblowers can also cause serious harm to an employer’s reputation by affecting customer trust and confidence.

A whistleblowing policy: Can encourage employees to report concerns and make them feel empowered to do so without fear of reprisal. A policy should outline how disclosures will be handled and emphasise protection for whistleblowers.

What if the whistleblower is wrong ?

This can be a tricky situation to manage, but if a whistleblower has raised concerns in good faith that are later found to be wrong, the employer should still handle the situation carefully and respectfully.

It is important to remember that if a whistleblower makes a disclosure in good faith that wrongdoing has occurred, but the report is wrong, they are still protected from victimisation and dismissal, even if mistaken.

Employers should avoid penalising a whistleblower if their disclosure is based on a reasonable belief, as it could deter others from coming forward in the future. It also goes against the spirit of the whistleblowing protections provided by law.

Finally

It is beneficial for employers to create an open and transparent culture where employees feel safe to raise concerns without fear of retribution.

If you are an employer dealing with such a situation, it is advisable to seek guidance from experts and you can contact our Employer Support Centre