"Was it something I said?” Whistleblowing during the pandemic

Updated 24 January 2022

20 September 2021

You may be surprised to learn that, without realising it, you may be a whistleblower. If you are a manager, you could easily come across a situation in which you are expected to manage (or even dismiss) a whistleblower, without anyone warning you of the dangers.

In many cases, whistleblowing is a lot less obvious than you might expect, but it can have a significant impact on and ramifications for all those involved. Whistleblowing cases can result in high value settlement agreements and injunctive relief is available in some cases if you act early. Whistleblowing legislation also covers more than just employees.

During the pandemic we have seen an increase in whistleblowing matters. This is unsurprising given the numerous ways in which the pandemic has highlighted concerns relating to health and safety, contracts and pay, as well as furlough fraud.

Even commuting to work (now that the “work from home” advice has been lifted) carries considerable risk for some and can raise legitimate health and safety concerns if staff are required to commute to their workplaces. How can people really be sure a workplace is “Covid secure” when the virus is mutating rapidly and each new variant seems more contagious than previous ones? It is essential to know your rights as an employee or worker and your obligations as an employer during this fraught time.

Many clients come to us with what might superficially be regarded as a “vanilla” redundancy or termination of employment situation, only to find on closer scrutiny of the facts that they are in fact whistleblowers and may be entitled to significant compensation from their employers as a result of a detriment suffered or their dismissal.

On the flip side, many employers who come to us for advice do not realise that an individual raising concerns may in fact be a whistleblower. It is easy to feel a false sense of security that someone with less than two years’ service (the qualifying period for an ordinary unfair dismissal claim) and no obvious discrimination claims can be dismissed without any significant problems or liabilities. However, where an individual is a whistleblower, length of service is not a bar to bringing a whistleblowing claim and there is no statutory cap on damages that can be awarded (as there is in ordinary unfair dismissal cases).

Whistleblowing can be wrapped up in grievances or raised during meetings and presentations, so it can be easily missed. 

How can you tell if you are, or someone is, a whistleblower?

Although every case will turn on its own facts, here are a few signs to look out for, or to follow if you wish to benefit from whistleblower protection in the UK:

  • You have (or the individual in question has) raised concerns in writing or verbally to the employer (or other responsible party in more limited circumstances). The concerns do not need to be raised in any formal way, although it is easier to prove that they have been made if they are clearly set out in writing. A comment in a chance encounter at the coffee machine may be enough.  
  • The concerns raised include information that relates to, for example, breach of any legal obligation (including breach of regulatory obligations)
  • The individual making the disclosure needs to reasonably believe that it was made in the public interest. This is a fairly low threshold test based on recent case law. 
  • There needs to be a causal link between any disadvantage (detriment) suffered and/or dismissal and the whistleblowing. This is often the area of the greatest challenge in whistleblowing cases.

What can employers do to reduce the risk?

  • Have a clear whistleblowing policy in place, coupled with clear and thorough training on the policy, so that people understand the way in which to raise their concerns and managers can better identify potential whistleblowing and know how to deal with it.
  • Where practicable, implement a whistleblowing hotline and/or appoint a whistleblowing officer at a senior level to investigate and deal with concerns raised as soon as possible.
  • Be on alert for concerns raised by staff that suggest any form of actual or anticipated wrongdoing and seek legal advice early before matters escalate out of your control.
  • Ensure your policies and procedures are, and best practice is, followed. Make it clear to staff that breaches of your whistleblowing policy and procedures will not be tolerated and, depending upon the circumstances, may amount to a disciplinary offence.
  • In regulated sectors, be particularly sensitive to any information provided by staff which may suggest any regulatory breaches. This means that managers need to be fully aware of and up-to-date on all relevant regulatory obligations.      
  • If an employer has a fair reason to dismiss someone who is or may be considered a whistleblower, ensure that a fair procedure is followed, including carrying out a reasonable investigation and communicating well documented reasons for their dismissal.  
  • Do not assume that if someone has less than two years’ service and no obvious “protected characteristics” entitling them to allege discrimination, they do not have a potentially serious employment law claim.

Concluding thoughts

The unfortunate reality is that whistleblowers can sometimes be regarded as “difficult” employees, for calling out wrongdoing and abuses. However, they should not be and UK law and best practice works hard to protect whistleblowers.  Whistleblowing can help organisations to improve and to root out hidden problems. It serves an important purpose, but if not dealt with properly and appropriately, can lead to very costly and serious issues.  

For individuals who have been dismissed or are facing ill-treatment at work, it is well worth considering whether it might be linked to some form of whistleblowing.

It is important to take legal advice at the earliest opportunity if you suspect that you may be a whistleblower, or if you suspect that a member of staff may be a whistleblower.

FURTHER INFORMATION

If you have any questions or concerns about the content covered in this blog, please contact a member of the Employment Law team.

 

ABOUT THE AUTHORS

Natasha acts for both employers and senior executives in a wide variety of sectors including (but not limited to) financial services, law firms and other professional services firms and retail and luxury brands. Natasha is a tenacious litigator and an astute negotiator. She acts in relation to the full range of employment-related issues. She particularly enjoys handling whistleblowing and discrimination cases and helping clients achieve success. 

Francesca Lopez is a skilled employment lawyer, with extensive experience acting on both sides of the negotiating table. From recruitment to termination, she handles the full spectrum of employment law matters, advising clients in a variety of sectors including but not limited to legal, financial and other professional services, technology, education, medicine, aviation and defence. She has a particular interest in acting for regulated clients.

 

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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