The concept of 'blowing the whistle' has received some media attention, most recently in respect of the murder trial of the nurse Lucy Letby.
It often involves a breach of an employer’s obligations, flagged by an employee, most commonly safety procedures or protocols that often reduce risks and protect people and interests.
Most people have an idea of what it means, but the law is very specific and it can be misunderstood. It is complex and, understandably, employers often overlook the legal details in such cases.
So, what are the essential legal elements of whistleblowing?
There has to be information disclosed, not just an allegation.
In the Lucy Letby case, my understanding is that consultants disclosed information, namely that more babies were dying than should be and that Lucy Letby was on duty when they died.
A mere allegation – 'Lucy Letby is a bad nurse' – would not have amounted to whistleblowing in employment law.
The disclosure must be in the public interest. Clearly, in the Lucy Letby case, it was, because it was in the public interest that suspicious deaths be investigated and that babies in hospital are well looked after.
Individual grievances – e.g. 'My manager is bullying me', even where information is provided about the bullying, will be unlikely to satisfy that test.
The information has to be something which, in the reasonable belief of the person providing it, amounts to:
Not necessarily. Whilst it can’t be a lie, it does not mean that, if it transpires that the information provided was incorrect, it would not be possible that it still could be a qualifying whistleblowing disclosure.
The person making the disclosure must have reasonably believed it to be correct when making the disclosure and must have made it in good faith.
So, if an Employment Tribunal concluded that there was no proper basis for them to have believed the information to be correct, the 'discloser' would not have the protection provided to whistleblowers.
In simple terms, the protection is from:
Should an employee succeed in such claims then the awards are unlimited, there is no cap and Employment Tribunals do take a rather dim view of employers who do treat whistleblowers detrimentally.
Businesses should have a 'Whistleblowing Policy' explaining to whom the disclosure should be made.
The general principle is that disclosure should be to the employer, to allow the employer to investigate and act on the information received.
Disclosure can also be to another appropriate body, e.g. reporting serious health and safety breaches to the Health and Safety Executive or providing information about tax evasion to HMRC.
Anyone thinking of blowing the whistle on their employer has to satisfy various criteria if they wish to gain the protection the law provides.
Employers often miss the fact that a disclosure was made, or overlook the link between the disclosure and how they then treat the employee – there are several strategic considerations to be made in such cases that can save employers huge headaches.
For a business to know whether or not there has been a 'Public Interest Disclosure', it is safest to obtain legal advice from the outset as that issue would affect how the business should then act.
Shaun Pinchbeck has over 30 years of experience as an employment lawyer, advising both employers and employees. If you have any queries about this article, please feel free to contact Shaun on 07548 767505 or shaun@bridgeehr.co.uk