It seems that employer’s actions regarding whistleblowing – also known as a ‘public disclosure’ – have never been more under scrutiny.

For the past couple of years, stories of whistleblowing in the NHS have been so prevalent that special new laws applicable only in the NHS are being introduced to protect its workers who have made a relevant disclosure. Very recently, a former Google employee blew the whistle on the internet search engine’s alleged tax avoidance.

It is not only large national and international employers who need to think about their whistleblowing practices; any employer could be faced with a disclosure from a worker.

Making a disclosure

A ‘disclosure’ is made when an employee reports his employer’s wrongdoing to either his employer, a legal adviser or a designated public body. In order to be a ‘protected disclosure’, it must be in relation to:

• A criminal offence being committed;
• A failure to comply with legal obligation;
• The occurrence of a miscarriage of justice;
• Environmental damage;
• Dangers to the health and safety of persons;
• Any deliberate attempts by the employer to conceal any of the above activity.

The employee must also reasonably believe that the disclosure is being made in the public interest.

Whistleblowing policies

Many employers operate a whistleblowing policy in their organisation, setting out a procedure for its employees to follow in order to make a disclosure. The absence of a policy does not mean that employees cannot make a disclosure, so it is in an employer’s interests to set out the procedure he wishes employees to follow if they do.

Without a reliable internal procedure, employees may feel that they have no option but to make the disclosure to the appropriate external public body, for example, to HMRC for matters relating to the payment of tax, in order for it to be dealt with properly. 

Government guidance suggests that, when a disclosure is made, employers should treat it seriously and meet with the employee to gather as much information as possible about it. The employee should be given an idea of what action will be taken, and what feedback may be provided to the employee along with timescales attached.

Consider your next steps carefully

When faced with a disclosure an employer’s initial reaction may be to overreact, especially if it has been made externally. However, initial investigations may lead you to realise there is a plausible issue to deal with. Employees who make false or malicious claims should be dealt with under the disciplinary procedure but employers should tread carefully before they make allegations about this. Again, detailed investigations will be required.

The law is clear in that dismissing an employee because they have ‘blown the whistle’ is automatically unfair.

This is a different concept to an ‘ordinary’ unfair dismissal where an employment tribunal is concerned with whether an employer has acted reasonably when they dismissed someone. Reasonableness is not considered with an automatic unfair dismissal and what’s more, unfair dismissals for whistleblowing carry no upper compensation limits.

In addition, paying the employee off to remain silent about a potential disclosure is not an option.