Legal Safeguards may be strengthened to protect and support Whistleblowers - Protected Disclosures in the Workplace

Whistleblowing has been brought sharply into focus in light of the press reports on the actions of the management of the hospital the Countess of Chester related to the case of Lucy Letby, involving their response to the whistleblowing raised by the consultants and doctors. There have been widespread calls for the law to protect whistleblowers to be strengthened. Currently the Employment Rights Act 1996 (“ERA 1996”) and the Public Interest Disclosure Act 1998 outline the law on whistleblowing. A worker (and some other office holders) may obtain the right to bring a whistleblowing claim before an Employment Tribunal when they potentially suffer a detriment (which might be dismissal or any other detriment) because they made a protected disclosure to their employer.

Whistleblowing, not unreasonably, is often regarded as a “hot potato” for human resources professionals, especially if the issue is sensitive and reflects badly on the business or organisation. There are various behaviours that can be subject of a qualifying disclosure, the term applied to an issue relating to whistleblowing.

For a disclosure to amount to a qualifying disclosure, it must satisfy the following tests:

1. There must be a disclosure of information – this in essence means that the disclosure must be specific rather than an allegation “I have witnessed inappropriate behaviour”. The disclosure may or may not be an allegation, both are not mutually exclusive.
2. There must be a reasonable belief from the employee that the disclosure is made in the public interest – meaning a disclosure which is rooted in a private interest will fail and may fall under a different type of employment claim depending on the circumstances.
3. The worker must believe that the disclosure amounts to conduct which is listed in sub-paragraphs (a) to (f) of ERA 1996, s 43B(1) as listed in brief below – for example a criminal activity or a breach of a legal obligation by the company or organisation. .
4. The belief that any wrongdoing has taken place must be reasonably held.

Conduct that fulfils the criteria that may amount to a qualifying disclosure is:

• a criminal offence – for example bribery;
• the breach of a legal obligation by an organisation – which could be neglect of individuals in care;
• a miscarriage of justice – such as firing a person for a mistake that they did not make;
• an action that puts someone's health and safety being in danger, which could be inadequate scaffolding on a building site;
• damage to the environment – perhaps a factory polluting the environment on a regular basis in breach of regulations and policy;
• information relating to a breach of the above conduct which has been deliberately concealed or covered up.

The test for a disclosure amounting to a qualifying disclosure is a high bar, and our lawyers would advise taking specific advice regarding the specific circumstances of your matter before filing a claim.

A disclosure of wrongdoing that contravenes the public interest must relate to something that affects others, such as fellow workers or the general public or is of national importance, such as the recent revelation that there had been as many as 2,000 precious artefacts stolen from the British Museum by a member of staff. A Danish art dealer, Dr. Ittai Gradel alerted the museum’s deputy director, Dr. Jonathan Williams, in 2021 drawing his attention to the fact that items were appearing for sale on eBay that Dr. Gradel believed were part of the British Museum’s collection. However, he stated that he was “fobbed off” and assured the museum was protected despite the presentation of Dr. Gradel’s clear evidence. 

Giambrone & Partners’ employment lawyers point out that whistleblowing also extends to a person unassociated with the initial behaviour in question but who attempts to cover up the wrongdoing, therefore HR professionals who attempt to side-line, pressure or harass a whistleblower are also at risk of contravening the law. Our lawyers strongly urge that a disclosure of conduct that contravenes the public interest must relate to something that affects others, such as fellow workers or the general public.

Daniel Theron, a partner, comments “However problematic the issues are it is absolutely essential that all concerns which may be a qualifying disclosure are investigated impartially and taken seriously. On no account should the whistleblower suffer any retaliatory actions such as harassment or dismissal following their disclosure, which may give rise to a claim. Apart from contravening the law it also can result in an employee taking action in the Employment Tribunal where all the details of the issue will be in the public domain and if successful, not only will the business or organisation suffer financial sanctions, but it will also suffer reputational damage which may be very hard to overcome. In turn, this could cause even more financial detriment to the business.” Daniel further advised, “clear guidelines should be available to all staff together with the consequences if a member of staff attempts to strike back at the whistleblower.”

An individual who identifies conduct that requires investigation within the organisation that employs them is not obliged to make a disclosure to their employer alone, a disclosure can be made to any of the following if appropriate:

• a lawyer;
• a government minister, if you work for a statutory body;
• a person you believe is responsible for the wrongdoing;
• an appropriate prescribed person or body;
• any other suitable person or body if you have sufficient reason to, or if it's related to an 'exceptionally serious failure' – for example, the police or media.

If you have reported conduct under a whistleblowing disclosure and have been subjected to unfair treatment such as: denied an expected or promised promotion, placed on a performance improvement plan or demoted, ostracised or bullied in your place of work, or if feel you are being victimised, our highly experienced employment lawyers will be able to advise you as to how you can obtain compensation for such treatment arising from a whistleblowing disclosure. In such a situation your employer will be obliged to demonstrate that such treatment was not as a result of your whistleblowing disclosure but due to another reason related to your conduct.

Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law. 

Daniel enjoys a reputation of being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.

If you have been sanctioned in the workplace due to a whistleblowing disclosure and would like to know more please contact us at clientservices@giambronelaw.com or click here.