Whistleblowing and whistleblowers
Summary
This guidance replaces OC 109/1. It explains the legal protection afforded workers who are victimised or dismissed for 'blowing the whistle' on their employers. This may include health and safety concerns reported to HSE. HSE has no enforcement role under the whistleblowing legislation but is one of the bodies to which a 'protected disclosure' can be made.
Introduction
Protection for 'whistleblowers' was established by the Employment Rights Act 1996 (ERA). It introduced rights of protection for workers not to suffer detriment or dismissal for raising concerns ('blowing the whistle') on their employers' fraudulent, criminal or dangerous activities.
ERA was amended by the Public Interest Disclosure Act 1998 (PIDA) and later by the Enterprise and Regulatory Reform Act 2013 (ERRA). The effect has been to clarify what constitute "protected disclosures", what classes of person are protected, and how disclosures can be made.
One of the categories of disclosure includes information tending to show that the health or safety of any individual has been, is being or is likely to be endangered and as HSE is one of the bodies to which a protected disclosure can be made.
Action
All Staff should:
- offer anonymity in accordance with normal complaints handling procedures.
- take complainants' details so they can be told the outcome of any investigation.
- forward any whistleblowing claims documents or information received from an Employment Tribunal to HSE's CAT in Bootle, who will deal with them as complaints.
- refer all enquirers to the free guidance from GOV.UK: 'Whistleblowing';
- also advise employees as follows:
- first raise their health and safety concerns with their employer or an appropriate manager (they can also raise their concerns with their safety representative),
- if the individual has done this and there has been no satisfactory response, or they feel they would be victimised for raising the matter internally, they should be advised to report the concern to HSE via the CAT,
- they may be legally protected from victimisation when reporting complaints to HSE (this could be used to persuade individuals to leave their name and contact details, to help in obtaining further information from, and providing feedback to, the complainant),
- they can bring a claim to an Employment Tribunal for compensation if they believe they have been victimised;
- and advise employers as follows:
- they should ensure they have procedures in place allowing workers to raise concerns internally,
- internal procedures should be simple to use, readily accessible and encourage workers to raise concerns internally as a first step;
- an existing company procedure (eg near miss reporting, hazard spotting, complaints procedures) may suffice, or be adaptable to accommodate reporting.
Background
Most complaints from individuals received by HSE will be protected disclosures. Complaint handling procedures already take into account the need to protect complainants by offering anonymity.
If an individual makes a claim to a tribunal on the grounds of victimisation by his employer after raising a concern, the tribunal will, amongst other matters, take into account the response received by the individual in terms of feedback on their concerns. It is therefore important to take complainants' details so that they can be told the outcome of any investigation.
HSE has no arbitrating or enforcing role in relation to "whistleblowing" legislation ; this is explicitly the responsibility of Employment Tribunals. The procedure for making claims to an Employment Tribunal invites claimants to indicate whether they want a copy of the claim form, or information from it, to be forwarded on their behalf to a relevant regulator (known as a 'prescribed person'). HSE is a prescribed person under this legislation.
In some circumstances, a worker claiming to have been unfairly dismissed may (within 7 days) seek an interim order so that employment continues or is deemed to continue, until the full hearing of the tribunal.
See Appendix 1 for further details of the legal requirements.
Organisation
No special organisational requirements.
Further References
Protect is an independent charity that provides free advice and assistance to concerned individuals and guidance to employers about setting up effective internal whistleblowing systems:
Protect
The Green House
244-254 Cambridge Heath Road
London E2 9DA
www.protect-advice.org.uk
Email Protect
Call Protect Advice Line: 020 3117 2520 (* option 1)
Contacts
FOD Legal and Enforcement Team
Appendix 1: application and scope of whistleblowing law
People covered
Subject to some limited exceptions, whistleblowing law protects all workers, regardless of age and length of employment. It covers:
- employees (including workers, contractors, agency staff, homeworkers);
- police officers
- professionals in the National Health Service (NHS), eg doctors, dentists, and pharmacists;
- trainees and work experience students.
It does not cover:
- the genuinely self employed (other than professionals in the NHS);
- volunteers;
- the intelligence services;
- the armed forces;
- students in education.
Qualifying disclosures
A qualifying disclosure is defined as any disclosure of information which, in the reasonable belief of the worker making the disclosure is made in the public interest and tends to show one or more of the following:
- a criminal offence has been committed, is being committed, or is likely to be committed;
- a person has committed a breach of law, for example; breach of a statutory requirement, contractual obligations, or common law obligations such as negligence, nuisance, or defamation (in Government and public authorities, it could also include an official's reasonable belief that a decision of the authority could be overturned by judicial review);
- a miscarriage of justice has occurred, is occurring, or is likely to occur;
- the health and safety of any individual has been, is being, or is likely to be endangered (includes risks to employees, contractors, visitors, customers, residents, patients, students, consumers, members of the public, etc);
- the environment has been, is being, or is likely to be damaged; and/or
- information tending to show any of the above has been, is being, or is likely to be deliberately concealed (this information does not have to be accurate, but workers must be able to show that they held a reasonable belief in all the circumstances that the information was accurate).
The worker must ordinarily work in Great Britain to invoke these provisions, but they also apply to malpractice occurring outside the UK. For example, an employee, working in Great Britain for a multi-national company who discloses to an appropriate person, malpractice in another office of the company outside the UK, would be protected.
The breach of law that is the subject of a disclosure need not be UK law.
Any provisions in agreements, eg confidentiality clauses or agreements to refrain from instituting proceedings for breach of contract cannot preclude a worker from making a 'protected disclosure'.
The disclosure of information by a worker which in itself constitutes a crime, eg disclosure under the Official Secrets Act, is not a qualifying disclosure.
Disclosure of information which is subject to legal professional privilege in England & Wales or confidentiality between client and legal adviser in Scotland, is not a qualifying disclosure if it is made by a person receiving that information as legal advice.
To whom can the concern be disclosed?
Workers will only be protected if they raise their concerns:
- 'to the employer or another responsible person':
- disclosure made to an 'employer', is a disclosure made to the employer directly, to someone senior to the worker with management responsibility, or through the employers' own internal whistleblowing procedures;
- concerns raised by agency or contractor workers to the host/principal employer are also protected. If the individual is victimised, they can only claim against their own employer, ie the agency/contractor;
- employees informing trade union/safety representatives, are not 'making a disclosure to the employer', unless the employer has specifically included raising concerns to safety representatives as part of their internal whistleblowing procedures; and
- trade union/safety representatives acting upon information received will receive protection against detriment and dismissal by the ERA;
- 'in the course of obtaining legal advice':
- workers will be protected whilst gaining 'legal advice',
- the person giving the legal advice is not protected if they pass it on - unless they are acting on that individual's behalf,
- this is intended to ensure that workers are protected whilst telephoning help lines, etc;
- 'to a Minister of the Crown':
- disclosure to a Minister relates to workers employed by government departments, non-departmental public bodies, agencies, NHS trusts, utility regulators, etc who can disclose concerns direct to the relevant Minister for that department instead of their employer,
- 'to prescribed persons' (appointed by the Secretary of State) – in this respect:
- the worker must reasonably believe the information to be substantially true;
- there is no requirement that the:
- disclosure be reasonable
- malpractice be serious
- worker should have raised the matter internally first,
- Health and Safety Executive and local authority officers in their role as enforcers of health and safety law are prescribed persons;
- the police are not prescribed persons.
Wider disclosure
In addition to making a disclosure to the persons described above, in certain circumstances a worker can make a 'wider disclosure'. This includes disclosures made to the police, the media, MPs and non-prescribed regulatory bodies.
In these circumstances the disclosure will only be protected if:
- it is reasonably believed to be substantially true;
- it is not made for personal gain;
- it is reasonable for the disclosure to be made; and:
- the worker reasonably believes that they will be subject to a detriment, if a disclosure is made to the employer or a prescribed person, or
- there is no prescribed person and the worker believes the evidence will be concealed or destroyed if he makes a disclosure to his employer, or
- the worker has previously made a disclosure of substantially the same information to the employer or the prescribed person already
Note, to be 'protected', the tribunal will take into account whether the worker followed the employer's internal whistleblowing procedures and any response the worker received from the employer and/or the prescribed person.
In determining whether it is reasonable for the worker to make the disclosure, regard shall be had to:
- the identity of the person to whom disclosure is made;
- the seriousness of the relevant failure;
- whether the relevant failure is continuing or likely to occur in the future; and
- whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person.
Further, depending on the circumstances, regard shall be had to:
- any action which the employer or person who received the previous disclosure took or might reasonably be expected to have taken as a result of it;
- whether in making the disclosure the worker complied with any procedure he was required to follow by the employer.
Victimisation
Victimisation is, detriment or dismissal suffered by an individual as a result of making a 'protected disclosure'. Examples of detriment include:
- disciplinary action;
- demotion;
- failure to provide training;
- failure to provide promotion;
- withholding a pay rise:
- selection for redundancy; or
- early termination of a fixed contract.
Employees can make a claim for unfair dismissal under the existing (ERA) legislation.