May 23, 2007

Whistleblowing: Legal Question & Answer

Last month, the Daily Mail highlighted the case of a community centre employee who was victimised after she exposed a colleague as a convicted sex offender who had won her whistleblowing claim.

What lessons can employers learn from this case?

A The case points out the importance of having proper policies and procedures for dealing with whistleblowers. Employers need to learn how to recognise when employees gain rights under whistleblowing legislation against detriment or dismissal. In whistleblowing situations, careful management will be required, which should include thorough investigation of the issues raised by the whistleblower.

Are employers required to introduce whistleblowing policies?

A The UK's whistleblowing law is derived from the Public Interest Disclosure Act. This does not expressly oblige employers to introduce whistleblowing policies, but their introduction is best practice.

Some employers that operate in regulated sectors are under separate obligations regarding whistleblowing. London Stock Exchange-listed companies are subject to the requirements of the Combined Code on Corporate Governance, which requires arrangements to be in place for staff to raise concerns in confidence about financial reporting or other matters.

US-listed companies are subject to the Sarbanes-Oxley Act, and this also requires procedures for the raising of accounting concerns to be in place.

Why would we introduce a whistleblowing policy if we are not legally required to do so?

A There are all sorts of good practical reasons for employers to maintain whistleblowing policies. For example, by fostering a culture of openness and transparency, employers are more likely to root out any malpractice or wrongdoing and so protect themselves against reputational and financial loss.

Effective policies and procedures are also the best protection against whistleblowing claims, since they will emphasise that genuinely held concerns will be thoroughly investigated, and that those who speak up will be protected against victimisation or dismissal as a result.

Aside from the legal costs and wasted management time involved, whistleblowing claims can result in high awards of compensation. There is no limit on the compensation that employment tribunals can award. Depending on the circumstances of the case, the tribunal may be able to make an injury to feelings award, as well as financial compensation.

The majority of claims settle on confidential terms, but there have been a series of high-profile cases involving six-figure compensation. The Prison Service was ordered to pay almost £500,000 to an employee who alleged that there had been serious wrongdoing in Wakefield Prison (Mrs C P Lingard v HM Prison Service).

Q What does the legislation cover?

A Danger to the health and safety of any individual is one of the six categories of malpractice that the legislation specifically mentions. The others are criminal offences, breach of any legal obligation that has been held to include (in Parkins v Sodexho) a breach of the whistleblower's own contract of employment, miscarriages of justice, damage to the environment, and the deliberate concealing of information about any of these. Disclosures about such matters may qualify for protection.

Q Who do whistleblowing rights apply to?

A Whistleblowing rights apply more widely than many other employment rights. Workers, and not only employees, are covered by the law, while certain groups - including agency workers - are specifically protected.

Q So what should we do if a worker is victimised for raising a genuine concern?

A Those involved should be warned that the victimisation of a genuine whistleblower is potentially a serious disciplinary offence, not least because it could expose the organisation to a claim by the whistleblower. The whistleblower should be offered extra support.

Q What if unfounded allegations are made maliciously?

A The raising of untrue allegations maliciously is also a serious disciplinary offence, and this should be explained in a whistleblowing policy and/or your disciplinary procedure. If you need to discipline a worker in such circumstances, be particularly careful to check that you have a good record of a thorough investigation showing that the employee made up their allegations for improper motives. Ensure that you follow the statutory dismissal and disciplinary procedure, as well as your own internal procedures.

By Andreas White, employment solicitor -


Anonymous said...

I have read through your entire Q and A post, but I could not see the details of the particular reason why the whistleblower actually had merit in her original accusation. If the sex offended was lawfully employed, with no intent to commit another crime, then the reason for her to "blow the whistle" was, in my opinion, unfounded in the first place. The fact that she was herself victimized is irrelevant, to be honest, although she certainly has every right to act on it. But consider that the sex offender, having been "outed", and perhaps forced to quit, has just as much, if not more, right to legal recompense than the whistleblower (barring illegal activities subsequent to the whisleblower's initial action).

Perhaps a little background knowledge would be in order here, such as the offender's job type, her actual work ethic, etc.

Anonymous said...

I have been in the UK for 10 years and after spending nearly £50.000 for the privilege of attending UK universities, still cannot recall when the BBC or any other TV has sent a report or even just a 2 minutes ran on academic freedom or freedom of speech in the universities in the UK.

Seriuosly, I cannot remember to the point that, sceptic as I may be I start feeling that this is all part of a bigger project.

University professors can appear on the TV screen to comment upon any subject to show their competence. Then you can read on the Economist very bad comments and criticism on MR. Berlusconi.

But I am asking who really owns the TV in the UK?

I see the run of the best crap award on local news but did we get just a 2 minutes run on bulling, spying and oppressing foreign lectures?

Clearly we did not.

Salvatore Fiore

Anonymous said...

No, they have meetings to extract information and will then fix their stories around the evidence, then kick out the whistleblower.

Anonymous said...

In reply to the first comment about the particular reason why the whistleblower actually had merit in her original accusation:

I assume that a community centre is required to screen employees and that a convicted sex offender should not have been employed. Exposing the failure to screen and the resultant inappropriate appointment of an offender in a post with access to vulnerable people would have merit.

Anonymous said...

Many different jobs require 'screening' of applicants. It is not unusual for this 'screening' not to happen and for the wrong person to end up in a job they should not have.

Once a colleague discovers that the wrong person was appointed, he/she have the option to say nothing - and watch the colleague make a mess - or to say something and live with the consequences.

The chances of any management admitting that they followed wrong procedures and did not complete a 'screening', are very slim. If they were to do so, they would be open to legal action... and so the Whistleblower pays the price.

This scenario is not unusual in higher education. Not unusual at all...