UK workers and employers are entitled to certain protections if they make a disclosure in the public interest regarding their employer’s or a third party’s actions. Encouraging your workforce to make any such disclosures in line with a specific procedure and reassuring them of their protected position if they do so, may be necessary and invaluable to a business. It is also important that there is clarity across the organisation of how to handle issues relating to whistleblowing. A whistleblowing policy plays a critical role in ensuring a consistent, effective and compliant approach to whistleblowing.
The following guide looks at the law on whistleblowing at work, from what protection a whistleblower may be afforded to what an effective whistleblowing policy should include.
What is a ‘whistleblower’?
A whistleblower is an individiual who reports certain types of wrongdoing, typically some form of dangerous or illegal activity that they have witnessed. In the workplace environment, this may mean they take steps to make senior management and/or the relevant industry authorities aware of the workplace wrongdoings.
Whistleblowing at work
Whistleblowing is another name given to the making of a disclosure in the public interest. For example, a worker may make a disclosure about a criminal offence, a health and safety issue, a miscarriage of justice, risk of or damage to the environment, non-compliance with a legal duty or the covering up of any of these matters. The event may have happened in the past, be ongoing or be, in the whistleblower’s opinion, about to happen but the whistleblower must have a reasonable belief in what they are saying.
The wrongdoing or malpractice covered by whistleblowing must be in the public interest; personal grievances will not be classed as whistleblowing and should be dealt with according to your business’ usual grievance procedures.
Whistleblowing in the workplace is dealt with under the Employment Rights Act. Not every concern reported by a worker will count as whistleblowing. Under the ERA 1996, the wrongdoing disclosed must satisfy each of the following criteria:
- The complaint must be a ‘qualifying disclosure’
- The complaint must be made ‘in the public interest’
- The complaint must be made to an appropriate or prescribed person or body, such that it is classed as a ‘protected disclosure’.
A qualifying disclosure is defined under the 1996 Act as any disclosure of information that, in the reasonable belief of the individual making the disclosure, tends to show one or more of the following:
- That a criminal offence has been committed, is being committed or is likely to be committed
- That a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject
- That a miscarriage of justice has occurred, is occurring or is likely to occur
- That the health or safety of any individual has been, is being or is likely to be endangered
- That the environment has been, is being or is likely to be damaged, or
- That information tending to show any matter falling within any one of the above has been, is being or is likely to be deliberately concealed.
It is immaterial whether the relevant failure occurred, occurs or would occur within or outside of the UK, and whether the law applying to it is that of the UK or of any other country or territory. In other words, a disclosure may still qualify where it relates to a matter occurring outside the UK, or where any offence or breach of a legal requirement involves the laws of another country.
Common examples of complaints that fall within the ambit of whistleblowing law are the commission of a criminal offence such as fraud, or where the company or organisation is deliberately flouting rules relating to health and safety.
In the public interest
Under the ERA 1996, the individual who makes a qualifying disclosure must also reasonably believe that they are acting in the public interest in so doing.
That said, the whistleblower need not be correct about their concerns, provided they have reasonable grounds for believing that the information disclosed, and any allegation contained in it, are substantially true.
In other words, their belief must be honestly held in all the circumstances prevailing at the time of the disclosure. Their complaint can also relate to past, present or likely future wrongdoing.
However, a complaint will not usually count as whistleblowing where it can be characterised as a personal grievance rather than a public concern, for example, bullying, harassment and discrimination. That said, this type of behaviour is still unlawful, albeit under different rules and to be dealt with in different ways.
For a qualifying disclosure to be protected under the 1996 Act, typically it must be made to the employer or any other person whom the whistleblower reasonably believes to be solely or mainly responsible for the relevant failure.
That said, disclosures may also be protected if they are made to a ‘prescribed person’, such as a regulatory body designated for the purpose, for example, the Health and Safety Executive or the Care Quality Commission, as well as for the purpose of seeking advice from a legal adviser.
Different rules apply as to when each of these disclosures will be protected. In particular, the rules covering disclosures ‘in other cases’ are extremely strict, whereby the individual must reasonably believe that the information is substantially true and not be acting for personal gain.
In addition, to make a protected disclosure ‘to others’ the individual must have previously raised the matter with their employer or with a prescribed body, or has not done so because they reasonably believe they would be penalised for so doing or that evidence would be concealed or destroyed.
How are whistleblowers protected by law?
Protection against detrimental treatment is given to whistleblowers under the Public Interest Disclosure Act 1998 (PIDA). As a result, if a whistleblower is victimised, unfairly treated, or dismissed as a result of their disclosure, they are entitled to bring a claim in the employment tribunal. Dismissal in these circumstances may be deemed automatically unfair and there is no cap on the compensation amount awarded to the individual. (That said, employment tribunals do have the power to reduce any compensation award by up to 25% if the disclosure was considered to have been made in bad faith.)
An employer’s legal duty under PIDA is to ensure that no worker suffers detriment as a result of their making a disclosure. There are no legal obligations on an employer to have a whistleblowing policy or procedure in place, although it is good practice to do so.
To qualify for protection under the ERA 1996, the individual making the disclosure must be acting in good faith throughout and must have reasonable grounds for believing that the information disclosed indicates the existence of one of the problems as set out above, from the commission of a crime to the concealing of evidence relating to a wrongdoing in the workplace.
The worker must also “whistleblow” in the right way and to the right person for that disclosure to qualify as protected. However, in circumstances where all these requirements are met, the whistleblower has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the individual has made a protected disclosure.
A detriment could include an employer’s refusal to offer the whistleblower promotion or training opportunities, or even demoting or dismissing that individual. In particular, an employee who makes a protected disclosure can make a claim for automatically unfair dismissal if they lose their job in consequence of having reported the wrongdoing.
As such, the law on whistleblowing is there to ensure that if, for example, a person witnesses any dangerous or illegal activity at work, they are able to raise this within their company or organisation, or to the appropriate authorities, without jeopardising their career progression or job security.
In addition, the protection afforded to the whistleblower extends to any detriment by a co-worker in the course of that other worker’s employment, whereby anything done will be treated as done by the employer. In other words, the whistleblower must not be treated unfairly by either their employer or work colleagues, nor lose their job, by reason of having made a protected disclosure.
That said, although it is immaterial whether any detriment occurs with the knowledge or approval of the worker’s employer, in proceedings against the employer in respect of anything alleged to have been done, it is a defence for the employer to show that they took all reasonable steps to prevent the other worker from doing that thing, or from doing anything of that description.
Is whistleblowing a criminal offence?
Although the act of whistleblowing is not, in itself, illegal, there are limited circumstances in which making a disclosure of certain information can be classed as the commission of an offence.
The classic example is where a worker leaks official information in contravention of the Official Secrets Act, whereby that individual may still be prosecuted regardless of the public merit of the information revealed or whether any damage to national interests was actually caused.
Further, under the ERA 1996, where any person making a disclosure commits an offence in so doing, this will not be treated as a qualifying disclosure, thereby not affording the worker any legal protection as a whistleblower.
How to handle whistleblowing in the workplace
Where a worker has concerns as to possible malpractice within the workplace that has either happened in the past, is happening now or they believe will happen in the near future, it is open to them to report the matter at any time.
Typically, the individual would be well advised to follow any procedures set down by the employer. These will often be found in the individual’s contract of employment or within the text of the employer’s grievance procedure.
In many cases, whistleblowing will involve the worker reporting their concerns directly to the employer in the first instance. However, in some cases, the individual may feel unable to use their employer’s disclosure procedure and will look to reporting the matter to a prescribed or other person or body.
It is important to note, however, that in the absence of any written policy or procedure on whistleblowing within the workplace, this does not preclude a worker from making a protected disclosure.
Equally, the existence of any contractual clause relating to confidentiality within an individual’s contract of employment, or even a gagging clause in a settlement agreement, will be void in so far as it purports to preclude the worker from making a protected disclosure.
In some cases, an individual may choose to make a report to an employer or prescribed person anonymously, although in these circumstances the matter may not be able to be taken further if the whistleblower has not provided sufficient information needed to do so.
By way of alternative, an individual can provide their name but request confidentiality, such that the person or body that the matter is reported to should make every effort to protect the whistleblower’s identity.
Once a complaint has been made, the employer or prescribed person will decide what action to take and/or whether further inquiries need to be made.
Although the whistleblower will not have a say in how the wrongdoing is dealt with, they may be kept informed of what progress is being made, albeit subject to the person or body dealing with the matter protecting the confidentiality and data protection of others.
In circumstances where a whistleblower is not satisfied with how their concerns have been dealt with, for example, where they do not feel the matter has been taken seriously and/or the wrongdoing is continuing, they may decide to report the matter to someone else, including a prescribed person or body. That said, to remain protected, this must still be done in the right way to the right person.
For the employer moving forward, it is important that they do not treat the whistleblower differently following a protected disclosure, although there is nothing preventing the employer from taking disciplinary action, or even dismissing an individual, in the ordinary course of the employment relationship for reasons unrelated to the complaint.
Being a whistleblower only affords a worker protection against victimisation for that reason only, and not for any misconduct or poor performance on their part.
Why have a whistleblowing policy?
Although an employer is not legally required to have in place a whistleblowing policy to handle protected disclosures, nor is an employee or worker bound to follow one, the importance of implementing, or making use of, a whistleblowing policy in the workplace cannot be underestimated.
Having a whistleblowing policy in place has several advantages for an organisation:
- Encourages openness and “speaking out” within the workplace by showing staff that the business and management will not only act in the event of wrongdoing but will also protect anyone blowing the whistle.
- Sets out the steps that will be taken following a disclosure, resulting in a transparent process and consistency.
- Publicises the manner in which staff at all levels are expected to behave.
- Encourages disclosures to be made sooner rather than later, which can result in the wrongdoing being dealt with speedily and potentially before regulatory or other action needs to be taken. In this way a whistleblowing policy can help to avoid negative publicity and reputational damage.
For the employer, by implementing clear procedures and policies on making protected disclosures, this will help to create an open, transparent and safe environment for workers to feel able to speak up without fear of reprisal.
This may even help to prevent any wrongdoing that could damage the reputation and performance of the employer’s business and, in some cases, serve to protect others, and the environment, from any risk of harm.
For the whistleblower, where the matter results in a complaint to the employment tribunal, compliance with any internal whistleblowing policy may help to determine the reasonableness of their actions in making the disclosure and thereby safeguard any claim for unfair dismissal or other detriment.
Further, by following the correct whistleblowing procedure, this may even help to safeguard the employee’s job security and prospects at work in the first place.
A whistleblowing policy is a written policy that sets out the procedures for dealing with a protected disclosure. In broad terms, this should set out who will be afforded protection and how protected disclosures will be dealt with.
It should also outline the rights and remedies for whistleblowers in the event of them being treated unfairly or suffering a detriment as a result of making a protected disclosure.
For employers looking to offer more detailed guidance, the whistleblowing policy should include an explanation as to the nature and extent of any feedback the whistleblower can expect to receive having made a protected disclosure, as well as an explanation of the steps that can be taken if the whistleblower is not happy with how the disclosure has been dealt with.
What to include in a whistleblowing policy
A whistleblowing policy should be clear, understandable and relevant to your business and sector. To be effective, several points should be included:
Definition of whistleblowing with examples.
Explaining what whistleblowing actually means and including some examples, which are relevant to the business, of when a disclosure should be made can help focus individuals’ minds on whether their concern is a whistleblowing issue or a personal grievance. That said, the whistleblowing policy should also make clear that not all disclosures will be major issues at their initial stages; what may seem a fairly trivial incident could still require disclosure. Make clear that workers can, if they wish, make a disclosure jointly with others.
Statement of the employer’s commitment to identifying, remedying, and eradicating any wrongdoing.
Make clear that this applies to all levels of the workforce and that malpractice in the workplace will not be tolerated.
Protection of the whistleblower.
A whistleblowing policy needs to encourage disclosure by staff members and so should make clear what protections are afforded to them if they make a disclosure. Emphasise that they will not suffer any detriment at all for making a disclosure and that you are actively encouraging them to come forward if they have any concerns. The whistleblowing policy should also clearly state that even if the disclosure is found to be incorrect, the individual making the disclosure will not suffer any detriment provided that they believed in what they were saying. Conversely…
Bad faith or malicious disclosures.
The whistleblowing policy needs to explicitly state that any disclosure made by anyone in the organisation in bad faith or maliciously will not be tolerated and could lead to disciplinary action. Such disclosures undermine the whole tenet of a whistleblowing policy.
The process and procedures which are to be followed by the whistleblower and the organisation in following up on the disclosure should be clearly set out. These should include:
- The person to whom the individual should initially approach, such as their line manager. That said, the process should also allow for them to speak to someone else if they do not feel comfortable approaching the first level of contact.
- The information the whistleblower will need to give. Although whistleblowers are not required to provide evidence, they should be able to explain their concern, why they are making the disclosure and any relevant background information that they have.
- Following an initial disclosure, what steps will be taken by the organisation to investigate the disclosure fully? Take care to be pragmatic when determining the process. You may wish to include several options or a hierarchy of action depending on the seriousness of the wrongdoing.
Although exact timescales should not be included, approximate timings can be included, for example, “We will endeavour to provide you with feedback within 14 days of your initial disclosure”. Keep open the possibility that such feedback may be a simple confirmation that any investigation is still ongoing.
It is important that the whistleblower receives some feedback. The whistleblowing policy should make clear that feedback will be provided but that details of the outcome may be confidential and so may not be told to them. For example, if the wrongdoer is facing disciplinary action, then the details should not be publicised.
Ideally, an individual should approach the designated person within the organisation to make any disclosure but on occasions, this may not be possible. The whistleblowing policy should explain that in this situation, the individual can contact a third party “prescribed person”, their legal advisor or their MP. A list of prescribed persons is available here. Although the relevant contact may depend on the business or sector involved, the list includes HMRC, the Serious Fraud Office, the Financial Conduct Authority and the Health and Safety Executive. Your whistleblowing policy should be clear that disclosure to a non-prescribed person, including the media, is likely to result in the loss of the protections afforded to whistleblowers.
In some cases, individuals will want to maintain their anonymity when making a disclosure. The whistleblowing policy should explain that this is possible but consider any difficulties that may arise with this. For example, feedback may not be possible if you are unaware of who made the disclosure, and the matter may not be able to be fully dealt with if the whistleblower cannot be contacted. In some situations, evidence may need to be given by the whistleblower, possibly in court. Methods of dealing with a request for anonymity could include communicating by anonymous telephone calls or using a depersonalised email address.
Right to be accompanied.
In order to encourage openness and potentially reduce tension and anxiety, make clear that individuals who have made or wish to make a disclosure, can bring a third party to any meetings or discussions about the matter. This could be a friend or a trade union representative, for example.
Support and advice.
Offering whistleblowers support and advice both during and after the process will encourage people to come forward and voice any concerns they have about wrongdoing and malpractice in the workplace and will also communicate to staff members that your organisation takes the situation seriously.
Whistleblowing policies should make clear that any confidentiality clause included in a settlement agreement will not be effective in a whistleblowing situation.
Anti-slavery and human trafficking.
For employers with a turnover in excess of £36 million per year, a whistleblowing policy should also cover or link to the organisation’s policy on anti-slavery and human trafficking within the supply chain and explain how concerns relating to these issues should be raised.
Managing legal risk & building a culture of transparency
Putting in place a clear, pragmatic and comprehensive whistleblowing policy is certainly a step in the right direction in terms of establishing and maintaining a culture of transparency and openness within the workplace but on its own, it may not be enough.
Firstly, regular communication about the organisation’s whistleblowing policy and process is needed. All members of the workforce need to be aware of and understand the policy and why it is in place. Copies could be placed on the staff intranet and included in induction packs for new starters or in the staff handbook. Training about whistleblowing and the policy should also be given to all staff members and this should be repeated fairly regularly to ensure that all new starters receive it. One option is to include it in any induction programme.
To achieve transparency and a culture of openness, it is vital that members of management are all on board with the whistleblowing process and that they regularly communicate this to their teams. Staff members will not buy-in to the process or have the confidence to come forward with any disclosure if they do not feel that management take it seriously.
Specific training about dealing with disclosures should also be given to those individuals responsible for dealing with any whistleblowing. Taking on this role can be daunting and knowing that they have the requisite training and support to deal with any whistleblowing issues will ease any concerns that the relevant individuals may have. It may also encourage whistleblowers to speak out if they are aware that the person to whom they are addressing their concerns has the appropriate training and will ensure that a proper investigation takes place. From the organisation’s perspective, this training should also cover reputation management in the event of a disclosure.
The whistleblowing policy should be reviewed regularly to ensure that it is still workable and is in line with the organisation’s approach to wrongdoing. Publicising the review, even if informally, will help to spread the message that the organisation is committed to stopping wrongdoing and protecting those who stand up against it.
Protect, a whistleblowing charity, has an advice line for workers and plenty of information online. In addition, the gov.uk and ACAS websites have sections about whistleblowing on their websites and trade unions can also help. Inform staff members about how they can access this further information and support in relation to whistleblowing. Again, this will show that you have zero-tolerance for wrongdoing in the workplace and will support anyone wanting to make a disclosure.
It is advisable for employers to also keep records of any whistleblowing disclosures made and the feedback provided to the whistleblowers. Even after the conclusion of the matter, regularly check in on any whistleblowers to ensure that they are not suffering any adverse consequences and have no further concerns about the matter.
DavidsonMorris’ employment lawyers offer a specialist advisory service to organisations on all issues relating to whistleblowing, including the development of a whistleblowing policy. Working closely with our team of HR consultants, we offer a holistic approach, addressing both the legal and HR aspects of managing all areas of whistleblowing in the workplace. For help and advice, speak to our experts.
Whistleblowing policy FAQs
What is considered whistleblowing?
Whistleblowing refers to the action of an individual who publicly exposes information about perceived wrongdoings within an organisation.
Is whistleblowing illegal?
The act of whistleblowing in itself is not illegal, however, depending on the facts of the case and the information that has been exposed, a whistleblower may be found to have acted illegally in exposing certain types of information.
What is meant by whistleblowing policy?
A whistleblowing policy is an organisation’s written policy which explains the organisation’s approach to whistleblowing. It should encourage whistleblowers to come forward and voice any concerns they have and be used to help cultivate a culture of transparency in the workplace.
What should be included in a whistleblowing policy?
A whistleblowing policy should explain what whistleblowing is, describe the protections afforded to whistleblowers and set out the whistleblowing process. It should also explain that disclosures can be made confidentially or to prescribed persons if the individual so wishes.
What is the process of whistleblowing?
Whistleblowing is the process by which a worker can make a disclosure which is in the public interest about wrongdoing by their employer or a third party without fear of repercussions from their employer.
Why is a whistleblowing policy important?
A whistleblowing policy helps to show the employer’s commitment to transparency, encourages workers to come forward with any concerns and allows for earlier disclosure which may result in the matter being dealt with before it gets too serious or causes reputational damage.
Last updated: 13 October 2022