Whistleblowing: Act fast or face the consequences

Whistleblowing protection affords employees the statutory right not to be dismissed or to suffer a detriment as a result of making a protected disclosure about their employer’s conduct.

Traditionally, for a disclosure to be ‘protected’, it must have contained raw information, and not simply voice a concern or raise an allegation; which would perhaps be more appropriately addressed by way of the employers grievance procedure.

For example, if an employee sent an email to their employer stating, “You are not complying with health and safety requirements”, this would likely be a mere allegation due to it being non-specific and meaningless in its current context. Whereas, if the employee communicated to the employer that “The factory has not been cleaned for several weeks, there are sharp, hazardous objects present which pose a risk to employees”, then this provides factual, specific information which concerns a potential malpractice in the factory.

In a recent Court of Appeal decision, it was made clear that a disclosure may, on the face of it, be an allegation, however, has the potential to constitute a protected disclosure provided it has sufficient factual content and was sufficiently specific. Context is key. Allegation and information are not always mutually exclusive terms.

For the employee to seek protection, they must make a disclosure to their employer which, in their reasonable belief, shows one (or more) of the following six wrongs has occurred or is likely to occur in the workplace, and is made in the public interest:

• A criminal offence;
• Breach of any legal obligation;
• Miscarriage of justice;
• Danger to health and safety of an individual;
• Damager to the environment; and
• The deliberate concealing of information about any of the above.

A claim for detriment or dismissal in connection with a protected disclosure must usually be presented to the Employment Tribunal within 3 months of the detriment or dismissal, save for the time going through ACAS Early Conciliation.

More pressingly, an employee can, within seven days of their employment being terminated, apply for interim relief. Interim relief is where the employment tribunal orders that the employee is still technically employed by the employer until the case is concluded, thus paying their wages until the final hearing. Applications for interim relief must be listed for a hearing as soon as possible which can be a stressful and costly ordeal for employers to prepare for.

The burden of proof for obtaining interim relief is if the claimant (employee) is “likely” to establish at full trial  (which has been expanded to “a pretty good chance”) that the protected disclosure was the reason for their dismissal.

If you have made a protected disclosure, or if an employee has made one about your business, give us a ring today to speak to one of our employment law specialists who can help claim or defend the action.