Whilst the phrase “blowing the whistle” clearly alludes to the act of attracting attention, the law in this area has historically failed to grab the limelight. Employer interest in the legal protection afforded to whistle-blowers has, for the most part, been confined to a small minority or specific sectors only. But no longer, it seems. Audrey Williams, Partner at global law firm Eversheds, explains.

The subject of whistle-blowing has rarely been out of the media in recent months, following celebrity scandals and health sector inquiries. Certain business sectors are more heavily regulated or, due to their nature, more hazardous and likely to encounter whistle-blowing issues. Even so, the rise in publicity of this topic may well explain the recently reported rise in allegations of employer wrong-doing by employees. As a result, more and more employers are now alert to the issues and risks associated with whistle-blowing and are opting to review their policies and procedures in this context. A recent report by the charity Public Concern at Work (PCAW) also highlighted this area and some policy issues.In the past, it is fair to say that relatively few employers outside certain sectors encountered whistle-blowing allegations. Many which did all-too often describe negative experience and a view that legal protections proved susceptible to abuse by employees which, in turn, diminished their effectiveness. There are, nonetheless, very good reasons for all employers to now consider existing policy, not only because whistle-blowing allegations appear to be on the rise but because the scope of whistle-blowing protection has changed recently.
 

The Public Interest Disclosure Act 1998 protects employees from dismissal or detriment upon the disclosure of certain wrong-doing. However, a new qualification, imposed upon such disclosure since June last year, means that protection is now only afforded to whistle-blowing allegations which the individual reasonably believes involves a public interest. Accordingly, personal grievances, over pay and conditions, for example, are unlikely to fall within this category and will no longer be protected. This change provides an opportunity for employers to clarify for their employees which of their concerns are legally protected as legitimate whistle-blowing, and which are not. Just as importantly, the Act clarifies the conditions applicable to qualifying disclosures; an important aspect being encouraging employees to report concerns directly to the employer where possible. Employers who facilitate such internal disclosure will not only reduce the likelihood of third party involvement, and potential adverse publicity, but will be in a position to identify and address genuine concerns early on, as well as deal with unfounded concerns.

Perhaps more significant still for employers is a new obligation to actively prevent bullying or other detrimental treatment of whistle-blowers by colleagues. Unless an employer has taken reasonable steps to prevent this type of victimisation, it will be deemed liable for the acts of its staff. To avoid such liability it is vital that policies and procedures make clear such conduct is unacceptable and, where it occurs, will be addressed. Necessarily, this means employees must be aware such conduct will not be tolerated and that staff know to whom they can report alleged victimisation. 

That is not to say the process of policy review need be onerous. Very many employers already have whistle-blowing policies, with those in the public sector required to do so. Even those which do not will have some channel of communication for dealing with grievances and/or mechanisms in place to address potential bullying and harassment in the workplace. Whistle-blowing is an important extension of these principles. Whilst, ideally, grievances should be dealt with separately, similar processes might be adopted for whistle-blowing, along the lines of the Acas Code. Reviewing such policies in the context of whistle-blowing is important to clarify employee protection but, moreover, protects the employer against allegations of whistle-blowing. It also ensures a unified approach across the organisation’s policies, simplifying practice and procedure. Equally important is the need for employers to address promptly concerns which are raised.Whilst some employers will perceive the risk of whistle-blowing allegations as remote, perhaps understandably in some cases, it is worth remembering also that there is a bigger picture at play. At its heart, whistle-blowing invariably stems from a breakdown in communication. Remote though the prospect may be, some of the worst disasters and scandals in recent memory might have been averted had communication channels with employees enabled them to report concerns over wrong-doing sooner. Employers are increasingly forming the view that “prevention is better than cure”.