Ask The HR Expert: What is whistleblowing?

Peninsula Team

March 09 2012

Whistleblowing, what is it and how does it affect employers? The formal term for whistleblowing is making a public disclosure. What this involves is an employee disclosing information about a serious wrong doing or malpractice at the firm he is working for. Whistleblowers are protected from being subjected to any detrimental treatment, victimisation or dismissal should they make a disclosure, under the Public Interest Disclosure Act 1998, which is the key piece of legislation regulating this topic. The need for this protection came about when the courts saw a series of cases where if an employee had disclosed information about, for example, an operational default in a business’s ship (Zeebrugge ferry disaster in March 1987) or that the seeping of minerals into workers’ overalls could cause scrotal cancer (Stokes v GKN Limited) all these consequences could have been avoided, but they didn’t in fear of backlash or ill treatment by the employer. Whistleblowing in the legal sense is a complex ideal. For example, if an employee was to make a disclosure, it doesn’t have to be true; all the employee has to show is that he genuinely believed it to be true. In addition the issue need not be happening, it could be that it has happened in the past, is happening in the present or is likely to happen in the future. Furthermore, should an employee be dismissed because of making a disclosure or for any reason attached, this warrants a valid claim of automatic unfair dismissal for which no qualifying period of service applies. Although it appears that the law of whistleblowing supports public interest and employees above employers, there are a number of factors that if followed employers could, in practice, tightly control the issue of whistleblowing in their workplace. The Act provides which disclosures can and cannot be protected. It provides only six types of disclosure that can be protected. A public disclosure will be protected if it entails disclosing information about: • A criminal offence being committed; • A failure to comply with  legal obligation; • The occurrence of a miscarriage of justice; • Environmental damage; • Dangers to the health and safety of persons; • In addition, any deliberate attempts by the employer to conceal any of the above activity. Additionally disclosures must be made in good faith and to the appropriate person. They must not be motivated by malicious personal motives and must be made to authoritative figures in the business such as managers. If however the disclosure is not dealt with appropriately, then the employee can disclose elsewhere for example the media or the police and the law will protect them here. In extension to the employee’s duties, the burden of proof rests with the employee to show that the disclosure was protected and that the disclosure was the reason for dismissal. Therefore with limited protection, employers should take advantage of this and set up an internal procedure to deal with disclosures. Not only would this aid employers in dealing with disclosures privately away from public scrutiny, following a set procedure would make it difficult for employees to claim victimisation or discrimination and companies will be made well aware of any malpractice going on in their business thus preventing further public disclosures from being made. Also if the procedure has not been complied with by the employee, their claim of public disclosure protection can fail. With tight adherence to these procedures employers can, in practice, control even this part of the working relationship. For any further information on whistleblowing, please give the Peninsula Advice Service a call on 0844 892 2772.

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