Blowing The Whistle – What Does It Mean?

Whistle-blowing is one of those subjects that becomes hot news every now and again, but few employers and even fewer employees know what the law is.

Before 1999, if an employee made public the fact that his employer was guilty of wrongdoing, the consequences for the employee were invariably unpleasant - ostracism, criticism, poor appraisals, victimisation and, not infrequently, dismissal. Not surprisingly, not many employees were prepared to stick their heads above the parapet and blow the whistle.

However, since 1999, employees and workers who make what are called ‘protected disclosures’ are protected from being badly treated because they have blown the whistle.

Last week I talked about the differences between workers and employees. Although most workers are protected under the whistle-blowing laws, they still cannot bring unfair dismissal claims if they are sacked. However, employees who make a whistle-blowing disclosure are protected from the first day of employment – unlike in most circumstances there is no need for them to have been employed for one year to bring an unfair dismissal claim.

That being said, to be protected there are certain conditions that must be complied with. Running off to the News of the World with a juicy story about your employer for financial gain probably will not count as a protected disclosure, so don’t expect your employer to take it too well!

For a whistleblower to be protected, the information he discloses must fall into certain categories. The main ones are that a criminal offence has been committed or is likely to be committed; that a person has failed to comply with a legal obligation; that a miscarriage of justice has occurred or is likely to occur; that the health and safety of someone is at risk or; that the environment has been or is likely to be damaged.

The whistleblower must also behave in a certain way in order to be protected. Firstly the whistleblower must have a reasonable belief that what he is disclosing is true. This means that even if it turns out that the employer had actually done nothing wrong, the whistle-blower will still be protected. Second, the whistle-blower must make the disclosure in good faith; in other words he must not be carrying out some other kind of vendetta Finally, he must make the disclosure to the right person.

Normally the whistleblower must first of all try and resolve the matter privately within the employer’s organisation. If this is unrealistic or impossible or if he has already tried this route without success, then it is appropriate to bring the matter to a wider audience. Only in exceptional cases will it be justified to go straight to the outside world.

If a whistle-blower is badly treated by his employer because he made a protected disclosure, he is entitled to compensation, which can include money for injury to feelings. If an employee is dismissed for making a protected disclosure it will be automatically unfair with no limit on the amount of compensation that may be awarded unlike ‘normal’ unfair dismissal where the maximum Compensatory Award is currently £56,800.

Lessons to learn; if you suspect your employer is guilty of malpractice or wrongdoing, do not see it as your chance for fifteen minutes of fame. Take advice before ‘going public’.

If you are an employer, firstly do not engage in malpractice or wrongdoing! But also do not assume that employees will meekly sit back if things go wrong and if someone does make a disclosure, do not punish them for it.

Published 27/09/2000.