Whistleblowing under the Employment Rights Act 1996 gives an employee protection against dismissal or any other detriment if the employee makes a protected disclosure.
An employee may have become aware of something at work which they consider should be brought to the attention of the authorities or to the wider public. However, employees have duties of loyalty and confidentiality to you and breach of these duties could lead to dismissal without compensation and possibly even legal action against them. The law gives employees protection but only if they go about things in the right way.
A whistleblower is only protected if the make a ‘qualifying’ disclosure about their employer’s malpractice. A qualifying disclosure could be about:
- a criminal offence that has been committed or is likely to be committed
- breach of a legal obligation
- a miscarriage of justice
- a danger to health and safety
- a danger to the environment
The geographical location of the wrongdoing (i.e. whether inside or outside the UK) is irrelevant.
There are a number of ways in which an employee may make a protected disclosure:
- they may make it to their employer
- they may make it to a legal adviser
- they may make it to an organisation prescribed for that purpose (normally a regulator or professional body).
They can make the disclosure to someone other than the above and still be protected but only if:
- they make it in good faith
- they reasonably believe the information to be substantially true
- they do not make the disclosure for the purpose of personal gain
- one of a number of stringent conditions is satisfied
- in all the circumstances it is reasonable to make the disclosure.
Normally this option will only be open if the employee has reason to believe that they will be subject to some detriment if they make the disclosure to you or that the disclosure will be concealed or not acted on. Even then they must choose the person to whom they make the disclosure carefully and justify their actions.
If an employee is dismissed for making a protected disclosure they are able to bring an unfair dismissal claim even if they have not been employed with the company for a year. An unfair dismissal claim must be brought within 3 months of the last day of employment. If they are not dismissed but suffer some detriment for making the disclosure, they can bring a claim to the employment tribunal for compensation.
If a whistleblowing claim is successful, the employee may be awarded compensation which is partly calculated in the same way as a redundancy payment but there will be additional compensation for loss of earnings and benefits. This is not limited like compensation in other unfair dismissal claims. They may also receive an award for injury to feelings (which is common in discrimination cases).
If the employee is not dismissed but some detriment is imposed on them, for example they are demoted, they are entitled to compensation for the financial loss this causes them. They may also receive an award for injury to feelings.
Our solicitors can advise your company on all apects of grievance and whistleblowing procedure.