Whistleblowing

The Public Interest Disclosure Act (colloquially known as the 'whistleblowing' Act) provides protection for those that report, or bring to the attention of the authorities, wrongdoing or the covering up of wrongdoing in their organisations after their internal protestations have been ignored.

Coverage

The Act has been described as a 'whistleblowers' charter, although relatively few may be able to rely on the protection it provides. It covers 'workers' - thus including employees and the self-employed, as well as agency workers and the like, and Crown servants. Protection is given to those making certain 'qualifying disclosures'. A qualifying disclosure is any information which tends in the reasonable opinion of the worker (which will be an objective test in each case) to show a relevant failure. The relevant failures include:

• A criminal offence has been, is being or is likely to be committed.

• A miscarriage of justice has occurred, is occurring or is likely to occur.

• Someone has failed, is failing or is likely to fail to comply with a legal obligation to which they are subject.

• Health and/or safety of any individual has been, is being or is likely to be endangered.

• The environment has been, is being or is likely to be damaged.

• Information relating to any of the above has been, is being or is likely to be deliberately concealed.

Course of Action

The first resort of a potential 'whistleblower' must be to the employer and if a qualifying disclosure is made in good faith to an employer (or some other person in the belief that they are responsible for the matter) or to a third party in accordance with a procedure authorised by the employer, then it will be a 'protected disclosure'. If the employee reasonably believes that if he discloses internally he will be subject to a detriment, or that the evidence will be concealed or destroyed, or he has previously made a similar disclosure without action, or it is reasonable for him to do so, disclosure may be made externally.

Disclosure to Regulator

Where disclosure is to be made to a regulator then not only must the matter comply with the above requirements but also the complainant must:

1. believe that the information is substantially correct;

2. believe the failure lies within the remit of the regulator; and

3. not be making the disclosure for personal gain.

Protection

Any clause in a contract which prohibits workers from exercising these rights is void, and any employee (there is no minimum service requirement) who suffers a detriment has a right of action. In the event of dismissal, this will be regarded as automatically unfair by a tribunal. This would include an employee on a contract lasting less than a year who has waived their rights regarding unfair dismissal. If the detriment falls short of dismissal then any employee or worker will also be able to complain to a Tribunal. Unlimited compensation - the limit for unfair dismissal does not apply to whistleblowing - can be claimed.

Whistleblowing Policy

It may be good practice for all employers to adopt a whistleblowing policy with an indication of to whom suspicions etc. should be reported.

At the time Abbey National did not have a whistleblowers policy (although all listed PLCs are now required to have such a policy) and the person who made the disclosures felt so isolated within the company that even though he was proved correct he felt he had to resign (although he later rejoined the company). Obviously, if the person disclosing wrongdoing is under pressure - whether deliberate or latent, not only are few likely to come forward, but also the purpose of the Act is lost.

Example of Policy

1. [As stated in its general compliance policy] [the Organisation] operates within the country's laws and regulations and expects all employees to co-operate in this by adhering to all policies and procedures.

2. Every employee is expected to advise [specify a named person or position] should (s)he become aware of any matter or act which seems not to be in accord with the general aim set out in 1 above. Specifically all employees are expected to make such notification immediately they become aware:

   1. of the breaking or proposed breaking of any law or regulation by an employee of the Organisation;

   2. of an organisation procedure or policy being broken;

   3. of any wrongdoing;

   4. of any matter which seems likely to harm an employee, customer, member of the public, the environment etc.; or

   5. of any possibility or suggestion that one of the items set out in a) to d) has occurred and is being covered up.

3. Assuming these requirements have been met (i.e. the initial report is to [specify] rather than to an outside body), the [Organisation] undertakes to hold the employee harmless and to protect them from any personal claims and from any victimisation, harassment or bullying occasioned as a result of their acts. The aim is that the career of any notifying employee should not in anyway be harmed or hindered as a result of their act (whether the item reported proves to be true or not, provided the reporting was carried out in good faith).

4. The action of any employee against an employee who has made disclosure under this policy and as a result of such disclosure, whether they are affected by the disclosure or not, will be regarded as gross misconduct and subject to summary dismissal.

5. Anyone, including an elected safety representative who becomes aware of a hazard or dangerous occurrence is expressly required to notify [specify] before making any other report - e.g. to an outside body - not least so that immediate action can be taken if necessary to remove the hazard.

6. Failure to notify when reasonably aware or certain of an occurrence covered by 2 above is regarded by the Organisation as misconduct, since effectively it makes the employee an accessory. Failure to notify internally before notifying externally is usually regarded as misconduct. Only if an employee has reasonable grounds for believing that no notice will be taken of the report internally may contact be made to an outside body in the first instance.

Note

If the Organisation has a compliance officer, then it may be logical to insert the name of that person in such a clause. However, in safety reporting it may be important that a person is designated for this purpose on each site, so that urgent investigation and rectification can be implemented.

Prosecutions

In the three years since the Act came into force there have been around 1,200 cases, and around £10,000,000 has been paid in compensation. The average payment is around £100,000 and the highest amount awarded was £805,000.