Whistleblowing: What, When, Why?

Whistleblowing is the commonly used term to refer to the Public Interest Disclosure Act 1998. The Act protects anyone who makes disclosures in the interest of the public who are then consequently victimised or dismissed, so long as certain criteria are met.

The Act makes provisions about the kinds of disclosure which may be protected and the circumstances in which they are protected.

The aim of the Act is to support employees in making disclosures about fraud, misconduct, bribery or other wrong doings without fear so that problems can be identified, dealt with and resolved quickly.

What does whistleblowing mean?

There have been many high-profile cases involving whistleblowing in the UK financial and banking sectors, as well as the NHS and social care sector.

Whistleblowing is making a disclosure in the public interest and usually happens when a worker raises a concern about danger or illegal activity that affects others.

It’s important to note that personal complaints such as bullying or discrimination are not usually treated as whistleblowing and should be handled through other channels such as the grievance process.

Make sure you have a sound whistleblowing policy

Both employers and employees may have a lot to lose when whistleblowing occurs. Whilst following a high level of business ethic should be a priority, a whistleblowing policy will lay out a clear process should anyone have serious concerns. You are also less likely to face an unfair claim from anyone who ‘blows the whistle’ if you have a policy to guide your actions.

Your internal procedure will help minimise the serious damage to your reputation should there be a public disclosure.

You need to make it clear to your employees what they should do if they come across malpractice in the workplace; they need to tell someone who can act on the disclosure.

Specifically, your policy should clarify that:

  • You place great importance on identifying and remedying wrongdoing in the organisation and you should highlight specific dangers and unacceptable behaviour.
  • Workers should inform their line manager immediately if they become aware that any of the specified actions are happening, have happened or are likely to happen.
  • In more serious cases, the worker should bypass lower levels of management and go straight to more senior management.
  • Concerns can be treated in confidence if the worker asks for this to be the case.
  • Individuals will not be penalised for ‘blowing the whistle’.
What qualifies as a disclosure?

The information must be of a serious nature in the public interest and must not be a trivial matter and may include:

  • Criminal activity
  • Miscarriages of justice
  • Danger to health and safety
  • Damage to environment
  • Failure to comply with any legal obligation or regulatory requirement
  • Bribery
  • Financial fraud

It is also important to note that the public interest test can be satisfied even if the disclosure is wrong and there was no public interest as long as there was the belief that the disclosure was objectively reasonable.

Anyone who is considered a worker is protected under the Act so this includes:

  • Employees
  • Trainees
  • Agency workers
  • Members of a LLP

A confidentiality clause, often referred to as a ‘gagging clause’ in a settlement agreement isn’t valid if an employee is whistleblowing.

Whistleblowing can be a complex area and the specifics of each case need to be carefully reviewed. If you need help with drafting and implementing a whistleblowing policy, or managing a whistleblowing case, please contact one of our Consultants for guidance and support.