It is common to witness what you perceive to be a ‘wrongdoing’ in the workplace, and out of a sense of decency and honesty you feel a duty to report it to someone to protect the public and/or colleagues. However, there is a very specific way you need to do this. People can feel cautious and reluctant to become what is informally known as a ‘whistleblower’ in these circumstances, because they are worried about losing their job and the consequences of disclosing information, such as being victimised or discriminated against themselves.
But whistleblowers are protected from unfair treatment, as long as they have acted in the public interest and have followed certain procedures, and this article is designed to highlight what these procedures are and to advise on what you need to know if you have witnessed wrongdoing and feel you should report it.
What is a ‘whistleblower’?
A whistleblower is an employee who makes what is known as a ‘qualifying disclosure’, which is information relating to a wrongdoing in the workplace, which they believe is in the public interest. A whistleblower is legally protected from victimisation, under the Public Interest Disclosure Act 1998, if the disclosure is in the public interest and is made in the right way to the right people.
Whistleblowing – what you need to know
- Public interest – In order to qualify for legal protection you must reasonably believe that the information you are disclosing is in the public interest and relates to malpractice and unlawful behaviour in the workplace which has happened, is happening or will happen.
- Not personal interest – You will not be protected by law if the disclosure is relating to something of a purely personal interest, ie. you are acting out of revenge for a previous wrongdoing against you, or you will gain financially from the disclosure.
- Examples of typical disclosures – Most qualifying disclosures will fit into one of these categories:
- Criminal offences
- Failing to comply with a legal obligation
- A miscarriage of justice
- Threats to the health and safety of the public and/or fellow employees
- Environmental damage
- An attempt to cover up any of the above
It is important that a disclosure qualifies as one of the above, you can’t just report issues of laziness or someone adopting high pressure sales techniques, for example. These are merely moral issues you don’t personally approve of, rather than unlawful practices.
- Who to report to? – You will be protected if you are following internal procedures in order to disclose this information to the right person and in the right way, so you should reasonably believe the information is substantially true and that you are making the disclosure to the right person. You should check your contract of employment prior to making any disclosure as it may contain the company policy and procedure on making a disclosure, and therefore who it should be made to. If you have any doubt, take legal advice, speak to a trade union representative if you have one, or speak to a health and safety representative, if this is applicable.
- Timing – You are entitled to make a disclosure straight away if you have witnessed malpractice which has serious consequences. In some cases you will be legally bound to do so, and in some professions there is a professional code of conduct through which you are duty bound to make disclosures straight away, such as accountancy and solicitors.
- Are you breaking the law in making a disclosure? – You should check that you are not breaking the official secrets act in making a disclosure, in which case you may not be protected. The same applies if you have signed a contract and are breaching an employer’s duty of confidentiality. However, if you have signed a non-disclosure agreement, this does not necessarily prevent you making a disclosure if the actions you have witnessed are proven to be unlawful.
- Keep a record – Although a disclosure can be made verbally, you should keep a written record of when you made it, what you said and who you said it to. This will help when seeking protection as a whistleblower.
- Don’t investigate – Your duty is to report wrongdoing, and once you have done so you need to leave the process to take care of itself, you should not then get involved by carrying out an investigation into the alleged malpractice as this could lead to breaching your own employee duties and the extent of your authority.
Contact Ison Harrison if you are wanting to make a qualifying disclosure
If you have witnessed malpractice in the workplace and are thinking of becoming a whistleblower, contact our employment law department at Ison Harrison and we can advise on your rights, whether you will be protected and how you should proceed. We can also offer advice and support with subsequent industrial tribunals, which may look into the alleged wrongdoing, how you acted in reporting it and what may have motivated the disclosure.
If you have any concerns relating to becoming a whistleblower, contact Ison Harrison today.
