Commonly asked questions on the legal issues relating to whistleblowing in the workplace
Whistleblowing occurs when an individual raises concerns, usually to their employer or a regulator, about a workplace danger or illegality that affects others. The Public Interest Disclosure Act 1998 is the key piece of UK legislation protecting individuals who 'blow the whistle' in the public interest. Both employer and worker may have a lot at stake in a whistleblowing scenario, and developing and promoting a clear and robust policy for raising concerns can help to minimise risk.
This factsheet outlines the legal position on whistleblowing and suggests sources of guidance. It explores the benefits of having a whistleblowing policy and what the policy should cover. It advises employers on how to implement an effective whistleblowing procedure while supporting sincere whistleblowers from start to finish.
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The CIPD welcomes legislation that supports employers' efforts to ensure compliance with legal and ethical standards. Individuals who have serious concerns that such standards are not being met are taking a brave step in coming forward, and they deserve effective legal protection. Employers should have a standalone whistleblowing policy that is supported at the top of the organisation and effectively promoted to the workforce.Organisations benefit publicly and commercially by adhering to good business practice, and any organisation can be highly vulnerable to accusations of unprofessional or unethical behaviour. A climate of open communication, supported by a clear procedure for dealing with concerns, will help to reduce the risk of accusations of misconduct and illegalities and ensure that concerns are dealt with speedily and effectively.
What is 'whistleblowing'?
Most people will have heard of 'whistleblowing' from various high-profile cases reported in the media. Following the recent economic crisis, there have been many examples of whistleblowing in the UK financial and banking sectors as well as in the NHS and social care sector.
In simple terms, whistleblowing occurs when a worker provides certain types of information, usually to the employer or a regulator, which has come to their attention through work. Whistleblowing is ‘making a disclosure in the public interest’ and occurs when a worker raises a concern about danger or illegality that affects others, for example members of the public. The disclosure may be about the alleged wrongful conduct of the employer, a colleague, client, or any third party. Typically, the whistleblower is not directly, personally affected by the danger or illegality, although they may be. Personal complaints such as harassment or discrimination are not usually treated as whistleblowing and should be handled according to the organisation’s grievance policy.
The legal position
Workers who make a ‘protected disclosure’ can make a claim to an employment tribunal if they’re treated badly or dismissed. The Public Interest Disclosure Act 1998 (PIDA) is a key piece of whistleblowing legislation and applies to almost all employees and workers who ordinarily work in Great Britain. Examples of the situations covered include financial malpractice, criminal offences, risks to health and safety, failure to comply with a legal obligation, a miscarriage of justice and environmental damage.
For a disclosure to be protected, the worker must follow the procedures set out in the legislation. There's a public interest test - only concerns which meet the test will give the whistleblower legal protection.
The disclosure must usually be made to an appropriate external body. For example, disclosing a health and safety issue to the Health and Safety Executive is likely to be protected. But disclosures to the media will be protected only in certain cases, for example, if there is no prescribed regulator or where less public disclosures didn’t get a reasonable response. In the event of an employment tribunal claim by the whistleblower, the claim form asks the claimant if they agree for the matters raised to be referred to the appropriate regulatory body.
The Whistleblowing Commission, established in February 2013 by the charity Public Concern at Work to examine the existing arrangements for workplace whistleblowing, made recommendations for further changes. The CIPD’s response to the consultation suggested that the definition of ‘wrongdoing’ should be extended to embrace ethical issues.
The Commission’s recommendations have not been incorporated into legislation to any significant extent. Changes that have been made include:
- the creation of non-statutory guidance and a code of practice
- a Government list of over 60 ‘prescribed persons’ - organisations and individuals that a worker may approach outside their workplace to report suspected or known wrongdoing.
CIPD members can find out more on the legal aspects, including the rules about the uncapped compensation, as well as recent and proposed changes to the law, from our Whistleblowing law Q&As.
Whistleblowing guidance and codes or practice are available from the Government and Public Concern at Work. The British Standards Institution also sets out good practice for the introduction, operation and review of effective whistleblowing arrangements.
The benefits to employers of having a whistleblowing policy
Employers as well as individuals may have a lot at stake when whistleblowing occurs. Whistleblowers may fear that management will be tempted to 'shoot the messenger', for example. The various codes of practice mentioned above advise that having a clear procedure for raising issues will help to reduce the risk of mishandling serious concerns. It’s also important for individuals to understand and be reassured by their employer that there will be no adverse repercussions for raising cases with their employer. An employer with a policy is also less likely to face a claim from an individual who blows the whistle.
Some sectors are covered by separate rules requiring organisations to operate a whistleblowing policy. For example the Financial Conduct Authority (FCA), and the Prudential Regulation Authority (PRA) have operated new whistleblowing rules from September 2016. These rules apply to certain banks, building societies, credit unions and some insurers, but they also serve as non-binding guidance for other organisations supervised by the FCA. The rules require employers to have a procedure to allow their employees and workers to raise concerns and appoint a senior person to take responsibility for the effectiveness of whistleblowing arrangements.
Management should support whistleblowing procedures; as high-profile corporate scandals show, business ethics can build or destroy an organisation’s reputation. The consequences can be extremely serious if the public loses trust in an organisation, be it a public sector organisation providing services to the community or a financial institution relying on its customer base to remain profitable.
The existence of a whistleblowing policy, together with evidence that the employer tried to deal effectively with any malpractice make it less likely that a tribunal will find an individual was reasonable to make disclosures to an outside body. An employer’s internal procedure will also help to minimise the serious damage to their reputation from public disclosures.
What a whistleblowing policy should contain
Employers should make clear to employees what to do if they come across malpractice in the workplace. This should encourage employees to inform someone who can act on the disclosure.
The policy should make clear that:
- The employer attaches great importance to identifying and remedying wrongdoing in the organisation (specific examples of dangers, illegality or unacceptable behaviour should be included).
- Staff should inform their line manager immediately if they become aware that any of the specified actions are happening (or have happened, or are likely to happen).
- In more serious cases (for example, if the allegation is about the actions of their line manager), the individual should feel able to raise the issue with a more senior manager, bypassing lower levels of management.
- Whistleblowers can ask for their concerns to be treated in confidence and that the employer will respect their wishes.
- Individuals will not be penalised for informing management about any of the specified actions.
It's preferable to deal with whistleblowing separately rather than as an extension to, or part of, an existing grievance procedure, while cross-referencing procedures on discipline and grievances. This is partly because the level of risk to the organisation and to the worker will generally be significantly greater in whistleblowing cases than in other matters.
Implementing the policy
A procedure is useful only if all staff are aware of it and follow the steps it contains. However, many individuals may feel reluctant to 'snitch' on colleagues. Despite often showing great courage and determination, whistleblowers are not necessarily popular with their colleagues, particularly where the disclosure could threaten people’s jobs. HR professionals should support sincere whistleblowers because uncovering any wrongdoing is in the organisation’s long-term interest.
Employers should train line managers to ensure that whistleblowing issues are resolved in line with the policy, and in a way that will cause least damage to the organisation. Policies should be fully supported by senior managers and be communicated to all staff.
- ensure that any concerns raised are taken seriously
- investigate thoroughly and make an objective assessment of the concern
- keep the individual advised of progress
- ensure action is taken to resolve a concern.
Employers should specify alternative means for an individual to register concerns with the organisation where they do not wish to approach their line manager. This could be a telephone 'hotline', for example, and/or a designated manager or officer reporting to the most senior person in the organisation.
Confidentiality clauses which are often found in contracts of employment, settlement agreements or staff handbooks may need to be restricted to take into account whistleblowing rights.
Useful contacts and further reading
Anyone who has serious concerns may feel the need to seek advice, for example from a recognised trade union or independent legal adviser.
Advice is also available at:
BOWERS, J., FODDER, M. and LEWIS, J. (2012) Whistleblowing: law and practice. 2nd ed. Oxford: Oxford University Press.
INCOMES DATA SERVICES. (2013) Whistleblowing at work. Handbook. London: IDS.
PUBLIC CONCERN AT WORK and UNIVERSITY OF GREENWICH. (2013) Whistleblowing: the inside story. London: PCAW.
PYPER, D. (2016) Whistleblowing and gagging clauses. London: House of Commons Library.
ASHTON, J. (2015) 15 years of whistleblowing protection under the Public Interest Disclosure Act 1998 : are we still shooting the messenger? Industrial Law Journal. Vol 44, No 1, March. pp29-52.
BACK, P.F. (2015) Time to speak up. Employers' Law. June. pp12-13
Confidentiality during and after employment – 2. (2016) IDS Employment Law Brief HR. No 1050, August. pp13-19.
JONES, P. (2014) Key steps to avoid whistle blowing problems at work. Employers' Law. April. pp14-15.
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This factsheet was last updated by Lisa Ayling, solicitor and employment law specialist, and by Rachel Suff.