When a member of staff raises a complaint or an issue about work or working practices, how do you identify if it's a genuine complaint or just a workplace whinge?
The Public Interest Disclosure Act 1998 ("PIDA") was introduced to give protection to workers who had raised legitimate complaints about malpractice in the workplace. However, employers also have an interest in uncovering wrongdoing within their organisation so that they can deal with it before it causes serious financial or status harm. Dealing with "whistleblowers" appropriately can also help prevent Employment Tribunal claims being brought.
The significance of whistleblowing claims is that no qualifying period of service is required. Contrast this with "ordinary" unfair dismissal claims where an individual (if they started employment on or after 6 April 2012) needs two years' service before they can bring a claim. For those whose employment started before that date, the qualifying period is one year. This recent increase in the qualifying period has led to some debate that individuals may try to bring a whistleblowing claim if they have insufficient service to bring an unfair dismissal claim. It is also important to be aware that whilst there is a cap on the maximum compensatory award for unfair dismissal of £72,300, compensation is unlimited for whistleblowing claims. Indeed, in a case last year, an NHS Chief Executive was awarded around £880,000 for his successful whistleblowing claim.
How are whistleblowers protected?
PIDA and the Employment Rights Act 1996 ("ERA") give workers the right not to be subjected to any detriment or dismissal on the ground that they have made a "protected disclosure". If a worker does suffer a detriment, for example, being overlooked for promotion, or being dismissed, they can bring a claim in the Employment Tribunal. Significantly, the dismissal of an individual will be automatically unfair if the reason, or principal reason, for their dismissal is that they have made a "protected disclosure". PIDA is a rather technical piece of legislation but in essence, a disclosure is protected if it is a qualifying disclosure.
What is a qualifying disclosure?
There are three elements in order for there to be a qualifying disclosure, namely the worker must make a disclosure of information which must relate to one of the six types of "relevant failure". The worker must also have a reasonable belief that the information tends to show one of the relevant failures.
A "disclosure" is more than merely a communication, and "information" must be more than merely an allegation or statement of position. The worker must actually "convey facts" whether in writing or verbally.
As for the second element, a qualifying disclosure is a disclosure of information which, in the reasonable beliefof the worker making it, tends to show that one or more of the six specified categories of malpractice has taken place, is taking place or is likelyto take place. The categories are:
Breach of any legal obligation
Miscarriages of justice
Danger to the health and safety of any individual
Damage to the environment
The deliberate concealing of information about any of the above
According to the whistleblowing charity Public Concern at Work, the largest number of concerns relate to financial malpractice and health and safety issues.
The worker does not have to prove that the facts or allegations disclosed are true. As long as the worker subjectively believes that the relevant failure has occurred or is likely to occur and their belief is objectively reasonable, it does not matter that the belief subsequently turns out to be wrong, or that the facts alleged would not amount in law to the relevant failure.
Crucially, the disclosures must be made in good faith which is not the same as truth. A disclosure that turns out to be false may still be protected if the worker acted in good faith (which has been described as acting with honest motives). Recent case law has established that Employment Tribunals should look at the predominant purpose of the disclosure in considering whether it was made in good faith. An "ulterior" motive, such as personal antagonism towards a manager, will only negate good faith if it is the "predominant" motive and it is for the employer to prove that a worker acted in bad faith.
PIDA also specifies the categories of persons to whom disclosures should be made, primarily the employer, but also to a "prescribed person" such as HMRC or the Environment Agency. Wider disclosure, say to the media, is subject to very rigorous conditions in order for it to be protected.
What to do if a concern is raised?
When a worker first raises concerns they should be reassured that the concerns will be investigated thoroughly and promptly. Wherever possible (and unless there are confidentiality issues) you should keep the worker up to date with progress as silence could lead them to make an external disclosure to a prescribed person or the media. If there is a whistleblowing policy in place this should set out what steps should be taken when an allegation of malpractice is raised, who is responsible for carrying out any investigation, what action the company is expected to take and any specific timescales. Make it clear in the policy that bullying or harassment of whistleblowers is a potentially disciplinary matter as is raising a whistleblowing concern maliciously or in bad faith.
Don't forget that the policy should be publicised internally and placed on a staff intranet or information about it placed on a staff notice board so that it is easily accessible by staff. A training session on the policy may also be helpful so that all staff are aware of their rights and responsibilities where there are whistleblowing concerns in the workplace.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.