How whistleblowers can fall short of protection

In light of a recent tribunal, Neill Thomas highlights the importance of employers dealing with any issues about a relevant failure properly.

In A McDermott v Sellafield Ltd and others, the tribunal found that Alison McDermott hadn’t established a protected disclosure or the doing of a protected act. Nor had she established a causal link between what she said or wrote and her contract being brought to an end. An appeal against the tribunal’s decision has reportedly been launched.

The case, like many others that reach the tribunal, shows that the law on whistleblowing is technical. There are hurdles to clear by those hoping to rely on it. And employers, as well as employees, need to understand what these are so that whistleblowing can be identified.

This is important because whistleblowers have statutory protection against (and the right to potentially unlimited compensation for) being treated badly for having blown the whistle. It is automatically unfair to dismiss an employee if the reason, or main reason, is that they made a protected disclosure and workers will have recourse if they have been subjected to a detriment on the ground that they made a protected disclosure.

In addition to those considerations, whistleblowing can serve a really useful purpose, alerting employers to problems in the workplace. Identifying an issue and dealing with it properly (in line with your whistleblowing policy) could nip a serious problem in the bud and help you improve processes and behaviours for the future.

What is the individual telling you?

Whistleblower protection applies where a disclosure is about a ‘relevant failure’:

  • a criminal offence;
  • breach of a legal obligation;
  • a miscarriage of justice;
  • danger to an individual’s health and safety;
  • damage to the environment; or
  • deliberate concealment of information relating to any of the above.

The employee must reasonably believe that the information they’re disclosing tends to show that there is, has been, or there is likely to be, a relevant failure. Also, that it is in the public interest to make the disclosure.

Has there been a ‘disclosure of information’?

An individual who mentions something nebulous about something not being right is probably not doing enough to qualify for protection. They should be giving you facts.

Has the ‘qualifying disclosure’ become a ‘protected disclosure’?

The disclosure must be made to the right person or organisation. This will usually be the employer, but the circumstances may call for disclosure to others, such as HMRC, Ofcom, or the Health and Safety Executive.

Protected disclosures and the surrounding circumstances must be handled with great care, but it’s good workplace practice to take all issues raised seriously – whether you think they amount to whistleblowing or not. This is part of engendering good communication with employees, and a mutual understanding that they will be heard.

It could help avoid other types of potential claims, such as discrimination or constructive dismissal. And, given that workers are your eyes and ears on the ground, it’s wise to listen to what they are telling you, and essential to handle the situation in the right way.

So, what should an employer do when someone raises a concern? A sound approach would be to treat it as something that needs to be comprehensively resolved, and to keep whistleblowing very much in mind. Whistleblowing, by itself, doesn’t create employment law liability; it’s the response to it that can.

A measured, informed and reasonable approach is vital. And if you make sure the individual isn’t treated badly for having raised a concern, they’ll likely struggle to get a tribunal on side (should things take that course).

This article was first published by People Management here.

To speak to us about your employment issues, whether to do with strategic business decisions or a particular issue involving an employee, get in touch with Neill Thomas or another member of our Employment Law team on 03702 188 990.