If one of your employees has blown the whistle (whether legitimately or illegitimately) on a workplace practice at your business then it’s imperative that you take the right steps to investigate the allegation and resolve the matter fairly. It’s advisable in such circumstances to obtain employment law advice for employers from a specialist employment law solicitor. This post will therefore look at what an employer should do if one of its employees “blows the whistle” at work. This will involve a look at:
- What is “whistleblowing”?
- What should you do if one of your employees blows the whistle?
- What are the consequences if you get the process wrong?
What is “whistleblowing”?
Whistleblowing occurs when a worker discloses particular information relating to a specific allegation to a qualified person. Under the Employment Rights Act 1996 it is unlawful to subject a worker or an employee to a detriment or dismiss an employee because they’ve blown the whistle on an illicit practice at your business. We’ll take a look below at when a worker may fall under the protection of the Employment Rights Act 1996.
In order to qualify for protection the worker must:
- Make a qualifying disclosure
- To a protected person
- In good faith and with reasonable belief that the information is substantively true
A qualifying disclosure is information which, in the reasonable belief of the worker, shows that one of the following has been committed, is being committed, or is likely to be committed:
- A criminal offence
- A failure to comply with a legal obligation
- A miscarriage of justice
- The endangering of the health and safety of any other individual
- Damage to the environment; or
- Information relating to the above has been concealed
The worker must disclose this information to a “qualified person” (among others, a lawyer, their employer or a Minister of the Crown) and must do so for a reason not related to personal gain. If the disclosure meets the above criteria then it will probably become a “protected disclosure”. If a worker at your business is subjected to a detriment (which is anything disadvantageous to them which is more than trivial in nature) because they’ve made a “protected disclosure” then this may cause you significant legal problems. We’ll now take a look at how you should deal with an allegation of whistleblowing.
What should you do if one of your employees blows the whistle?
Firstly, you should consult your whistleblowing policy (if you have one). Check that the worker has received a copy and complied properly with this. If they haven’t received a copy then forward them one.
Secondly, it may be appropriate to suspend the worker that has made the allegation (preferably on full pay) until the resolution of the investigation. It will normally also be appropriate to suspend those that the allegations have been made against. This prevents friction at work and allows the investigation to be undertaken in as efficient and fair manner as possible.
Thirdly, you should investigate the allegations that the worker has made as promptly as possible. The investigation must be fair and impartial – if you fail to carry out an adequate investigation or you don’t investigate the matter quickly enough then the worker may be tempted to take the information that they have to a third party. This may cause you significant harm (media exposure, external investigations) and embarrassment so it’s best to try and resolve the matter internally if possible.
What are the consequences if you get the process wrong?
There are two potential consequences:
- Criminal liability
- Civil liability
Businesses can incur criminal liability (under the Bribery Act 2010, for example) if they fail to put in place adequate procedures to resolve allegations in the workplace. This is extremely serious. Further, they may also incur civil liability if, for example, the whistleblowing worker suffers a detriment or is dismissed (if they’re an employee) because of the fact that they’ve blown the whistle. This may lead to expensive and time consuming Employment Tribunal litigation.
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