This post was co-written by Lindsey Hooper, Associate, Norton Rose Fulbright LLP (London)
Due to recent scandals in the UK around insider dealing, interest rate fixing, blacklisting and cartels, the subject of “whistleblowing” has become a hot topic, with organisations becoming increasingly concerned about malpractice and the legal and reputational consequences of its discovery. Set out below is a brief overview of the whistleblowing legislation in the UK.
What is a protected disclosure?
In the UK workers enjoy certain employment protection rights if they make a disclosure of information which is protected under the relevant UK whistleblowing legislation. For a disclosure to be protected it must be factual (i.e. cannot be a mere allegation) and the information disclosed must, in the reasonable belief of the worker, tend to show that one of the following has occurred, is occurring or is likely to occur:
- a criminal offence;
- breach of any legal obligation;
- a miscarriage of justice;
- damage to the health and safety of any individual;
- damage to the environment; or
- the deliberate concealing of information in relation to any of the above.
In addition, since 25 June 2013, the worker must reasonably believe that the disclosure is in the public interest. The meaning of this new test is likely to be tested in litigation but it should be noted that a disclosure which is made in the worker’s interests will pass the test if it is also in the public interest. However a disclosure made solely in the worker’s interests, or only to damage the interests of another, will not.
Who must the disclosure be made to?
The whistleblowing legislation encourages workers to “blow the whistle” directly to their employer. In other situations where the employer is not responsible for the malpractice or where the worker feels that they cannot disclose the information to the employer, they may “blow the whistle” to responsible third parties, prescribed persons (approved by UK Parliament), government ministers or legal advisers. In very rare situations, a disclosure may be made to a wider category of persons but it will rarely be acceptable under the legislation for a disclosure to be made to the media.
What is the nature of the protection?
If a disclosure is a protected disclosure for the purposes of the legislation, the whistleblower will be protected against:
- in respect of employees, dismissal (including selection for redundancy) if the reason or principal reason for the dismissal is that they made a protected disclosure; (a dismissal in these circumstances would give rise to a claim of unfair dismissal); and
- in respect of employees and workers, being subjected to any detriment on the ground that they have made a protected disclosure.
Both claims can be brought in the employment tribunal and successful claimants may be granted compensation which is uncapped.
Practical tips for employers
If they have not done so already, employers should consider taking the following steps to reduce the risk of undetected malpractice within their organisation:
- implement a whistleblowing policy and publicise the policy internally;
- train management and HR on how to deal with whistleblowing and have a clear process for addressing whistleblower claims which ensures independence and protects the whisleblower; and
- investigate disclosures promptly and keep the whistleblower informed of the progress of the investigation.
Changes to the law
As mentioned above, a number of changes to whistleblowing law were introduced on 25 June 2013. The UK Government is also considering whether to amend the whistleblowing legislation further. In July 2013 it launched a call for evidence on the effectiveness of whistleblowing legislation which included proposals to extend the categories of protected disclosures and addressed whether financial incentives for whistleblowing should be introduced. We are currently waiting for the outcome of this call for evidence.