Any worker can bring a claim – this has been interpreted to include not only employees and casual workers but a member of an LLP. Employers are vicariously liable for the acts of their staff, so if colleagues subject workers to detriments because they have blown the whistle, that worker might successfully sue the employer unless they can show they took reasonable steps to prevent that behaviour. To be a protected disclosure, the worker must reasonably believe the disclosure to be in the public interest but this has been interpreted to include matters affecting the employee personally, such as in respect of their own health and safety or commission payments.
It is therefore sensible to have a Whistleblowing Policy, confirming that the employer encourages its staff to raise concerns and that action will be taken against those that victimise whistleblowers. It is important however to act on that policy: to take any disclosure of information seriously and to discipline anyone found to have victimised a whistleblower.
We can help you draft a Whistleblowing Policy, deal with a Grievance that a worker has been victimised because of whistleblowing or advise, assist and represent you in an Employment Tribunal claimarising out of whistleblowing. Our wealth of experience in dealing with these claims means that we can assess the merits of defending or settling the claim and, if appropriate, assist you in presenting a robust defence.
It is usually possible to agree a fixed fee to draft a Whistleblowing Policy or give unbundled advice about an allegation of victimisation. Where you want us to give open ended advice or represent you in proceedings, we will provide the best estimate we can and keep you fully informed about the costs you are likely to incur.
To qualify for protection, a whistleblower must disclose information (i.e. not merely make an allegation) that in his/her reasonable belief is in the public interest and tends to show either that
Any worker is protected from detriment on the ground s/he made a protected disclosure. Employees are protected from dismissal if the principal reason for dismissal was that s/he made a protected disclosure. Workers can include casual staff and some contractors who are otherwise treated as self-employed. A member of an LLP was found to be a worker for the purposes of whistleblowing legislation.
The motivation of staff is no longer relevant to whether or not a disclosure is a protected disclosure, though disclosures made in bad faith can result in reductions to compensation. Whistleblowing for personal gain can result in protection provided that the worker reasonably believed that the disclosure was in the public interest and it is made to his/her employer, in the course of obtaining legal advice or to a prescribed person. A salesman who whistleblew about accounting irregularities affecting his commission was found to be protected.
There is no need for qualifying service for a worker to be protected by whistleblowing legislation: an employee dismissed on day 1 will be unfairly dismissed if the principal reason was that s/he made a protected disclosure.
Whistleblowing outside the employer organisation still attracts protection from victimisation if