Whether it’s wider whistleblowing incidents such as the global scandal involving Edward Snowden or incidents specifically affecting employers, whistleblowing is rarely out of the news. A Midlands based NHS Trust was recently in the news as a result of its alleged treatment of a cardiologist who blew the whistle about patient safety. Some timely reminders that, following the recent legal changes in this area, commentators are warning that claims are set to increase.
What does the law say?
The Public Interest Disclosure Act 1998 (‘PIDA’) protects whistleblowers whose employer dismisses them or subjects them to a detriment on the grounds that they have disclosed past, present or likely future wrongdoing (primarily to the employer, but in some instances it also covers external disclosures). The ‘wrongdoing’ covered by PIDA includes: criminal offences, breaches of legal obligations, miscarriages of justice, dangers to the health and safety of any individual, damage to the environment and deliberate concealment of any of the above.
Since June 2013, the requirement that a whistleblower must have been acting in ‘good faith’ in making a protected disclosure has been removed. It has been replaced by a similar requirement for the whistleblower to have a reasonable belief that they were acting ‘in the public interest’. However, popular perception appears to be that it will now be easier to fall within the protection afforded to whistleblowers. As a result, there are fears that we will see an increase in the number of whistleblowing claims being made by employees.
It’s easy to see the attraction. Dismissal as a result of whistleblowing is an automatically unfair dismissal. Moreover, awards for unfair dismissal are usually limited to the lower of £76,574 or one year’s pay. However, where the reason for the dismissal is whistleblowing the compensation is unlimited and the usual qualifying period of employment doesn’t apply.
Our top tips for avoiding whistleblowing claims
- Make it easy for employees to find out who they should approach internally to make a protected disclosure, reducing the risk of the report being made externally.
- Have a clear written policy to deal with incidences of whistleblowing. The policy should be readily available to all employees and managers should receive training on implementing it.
- In your policy, explain the steps that need to be taken by the investigators to ensure that a full and fair investigation takes place. The investigation should be clearly documented and should state the reasons why the investigators have arrived at their conclusions.
- Emphasise that the investigation should be dealt with separately from any related grievance or disciplinary investigations. Often these can be the cause of, or result from, the whistle-blowing. It should be clear that they did not influence the outcome of the whistle-blowing investigation.
- Err on the side of caution and follow your policy irrespective of whether or not it initially appears that the disclosure was made in bad faith.
- Make it clear what will happen to those who victimise whistle-blowers.
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