Workplace Whistleblowing

Dylan Loughlin

‘Whistleblowing’ is when a worker provides certain types of information which has come to their attention, usually to the employer or a regulator, to raise a concern about danger or illegality that affects others. The disclosure may be about the alleged wrongful conduct of the employer, a colleague, client, or any third party. In the vast majority of cases, the whistleblower is not directly, personally affected by the danger or illegality, although in some cases as illustrated below, it is possible that they can be.

In the UK, the Public Interest Disclosure Act 1998/Public Interest Disclosure (Northern Ireland) Order 1998 is a key piece of legislation protecting individuals who ‘blow the whistle’ in the public interest. Examples of the situations covered include financial malpractice, criminal offences, risks to health and safety, failure to comply with a legal obligation, a miscarriage of justice, and environmental damage.

Workers who make a ‘protected disclosure’ can make a claim to an employment tribunal if they’re treated badly or dismissed. For a disclosure to be protected, it must meet the test for being in the public interest and the worker must follow the procedures set out in the legislation. The disclosure must usually be made to an appropriate external body.

For example, disclosing a health and safety issue to the Health and Safety Executive is likely to be protected. Disclosures to the media will be protected only in certain cases, ie if there is no prescribed regulator or where less public disclosures didn’t get a reasonable response.

The exhaustive list of protected interest disclosures as set out by the legislation includes;

(i) Crime.

(ii) Breach of a legal obligation. (Breach of internal rules may not be enough, see: Korshunova [2017] EAT).

(iii) Miscarriage of justice.

(iv) Health or safety.

(v) Damage to the environment.

(vi) Cover-up.

Employers should have a standalone ‘speak up’ policy that is supported at the top of the organisation and effectively promoted to the workforce. This should make clear to all staff what to do if they come across malpractice in the workplace, and encourage individuals to inform someone who is in an appropriate position in the organisation to act. Both employer and worker may have a lot at stake in a whistleblowing scenario, and developing and promoting a clear and robust policy for raising concerns can help to minimise risk. Copacetic can help you with developing such a policy.

All stakeholders are fundamental in the implementation of the policy, and it’s main objectives should be:

  • To encourage staff to report suspected wrongdoing as soon as possible, in the knowledge that their concerns will be taken seriously and investigated as appropriate, and that their confidentiality will be respected.
  • To provide staff with guidance as to how to raise those concerns.
  • To reassure staff that they should be able to raise genuine concerns in good faith without fear of reprisals, even if they turn out to be mistaken.

– Dylan Loughlin, Director