Whistleblowing is high on the public agenda, the consequences of mishandling a case include damaging the organisation’s reputation and staff morale, unlimited damages and possibly criminal liability. Presentation to Bristol CIPD, 16 June 2015

1. Whistleblowing, the law
for Bristol CIPD – 16 June 2015
Rupert Scrase & Martin Augustus
Scrase Employment Solicitors

2. Whistleblowing, the law
• Introduction
– Rupert Scrase
• Whistleblowing, legal background
– Rupert Scrase
• Whistleblowing, practical steps
– Martin Augustus

3. Scrase Employment Solicitors
Training from experience
In house company training
Practical straightforward advice
Employment Law Advice through
fixed rate for projects, eg. updating handbooks
hourly rate, or
Employment Law Advice Agreement (ELAA)

4. ELAA
• Key benefits of annual ELAA are:
Employment law advice on phone, email or in person
Preparation and representation in Employment
Tribunal
Drafting of settlement agreements
Checking of employment related documentation

5. Legal background
• Whistleblowing protection is in the Public
Interest Disclosure Act 1998 (PIDA)
• PIDA came into force in 1999 following various
disasters such as Zeebrugge and Piper Alpha
where staff had concerns but were too scared
to raise them
• PIDA inserted new sections 43A-43L and 103A
into the Employment Rights Act 1996

6. Legal background
• Law protects ‘workers’
– This is a wider definition than ‘employees’
– Includes:
• Homeworkers
• Non-employees undergoing training or work
experience
• Self-employed doctors and other professionals in the
NHS
• Agency workers

7. Legal background
• There are two key protections for workers
who make a ‘protected disclosure’:
– Any dismissal will be automatically unfair if the
reason is that they have made a ‘protected
disclosure’
– Workers must not be subject to a detriment for
making a ‘protected disclosure’
• There is no financial cap on compensation and
no requirement for a minimum period of
service

8. Legal background
Qualifying
disclosure
Made in certain
circumstances
Protected
disclosure

9. Legal background
• A whistleblower must first make a ‘qualifying
disclosure’:
– The subject matter of the disclosure must be:
• Criminal offences
• Breach of any legal obligation
• Miscarriages of justice
• Danger to H & S of any individual
• Damage to the environment
• Deliberate concealing of information about any of the
above

10. Legal background
• Qualifying disclosure (continued)
– The worker must have a reasonable belief that
the information shows one of the failures and that
the disclosure is in the public interest

11. Legal background
• What is a disclosure?
– The disclosure does not have to be made through
a whistleblowing policy
– It can be made either orally or in writing
– It might be in a grievance letter or solicitor’s letter
– To be a disclosure, it must ‘convey facts’
– NB. An email to a line manager may be a
‘disclosure’ even if HR are entirely unaware of it

12. Legal background
• Reasonable belief
– The disclosure does not have to be found
ultimately to be true
– It would be a qualifying disclosure if a worker
reasonably but mistakenly believed malpractice
had occurred
– The worker must reasonably believe it is in the
public interest

13. Legal background
Protected
disclosure
Responsible
person
Wider disclosure Legal adviser
Exceptionally
serious cases
Employer
Prescribed
person
Government
Ministers

14. Legal background
• A protected disclosure is made to:
– The worker’s employer
– A ‘responsible person’ but only if the worker
reasonably believes that the malpractice relates
to:
• a person who is not their employer (e.g. a customer of
the employer), or
• Any other matter for which a person other than the
employer has legal responsibility
– A legal adviser

15. Legal background
• A protected disclosure is made to (continued):
– Government ministers (broadly, if worker is
employed in the public sector)
– Prescribed persons
• There is a statutory list which includes organisations
like the Information Commissioner, H&S Executive and
MPs
• Prior disclosure to the employer is not required
• Only protected if worker reasonably believes the
default falls within remit of prescribed person and the
allegations are substantially true

16. Legal background
• A protected disclosure is made to (continued):
– Wider Disclosure - other third parties (e.g. the
media ) but only if the worker reasonably believes
the allegations are substantially true and is not
acting for personal gain and
• the worker must have previously disclosed the
information to their employer, or
• reasonably believes that they will be subject to a
detriment if they make the disclosure to a prescribed
person, or
• That the employer will conceal or destroy evidence

17. Legal background
• A protected disclosure is made to (continued):
– Exceptionally seriously cases
• There is no need for a worker to have raised the matter
internally
• The worker must not make the disclosure for purposes
of personal gain
• In all the circumstances of the case, it must have been
reasonable for the worker to make the disclosure
having regard to the person it is made

18. Legal background
• Whether an employee acting reasonably in
making wider disclosure (to third parties) will
depend a number of factors including:
– The person the disclosure was made to – e.g. it is
more reasonable to disclose to the police than the
media
– The seriousness of the matter
– Whether the employee has complied with the
employer’s whistleblowing procedure

19. Legal background
• ‘Gagging’ clauses
– S.43J ERA states: “ Any provision in any agreement
to which this section applies is void in so far as it
purports to preclude the worker from making a
protected disclosure…”
– This means an employer can’t stop an employee
blowing the whistle to a regulator (if it is a
protected disclosure) but they can settle any
employment claims through a settlement
agreement

20. Legal background
• Detriment
– Workers have a right not to be subjected to any detriment
on the ground that they have made a protected disclosure
– Examples of detriment include threats, disciplinary action,
loss of work or pay or damage to career
– A former worker can be subjected to a detriment – e.g. by
providing a bad reference
– Employer can be vicariously liable for detriment caused by
employees and workers
– Workers who victimise whistleblower colleagues may be
personally liable

21. Legal background
• Dismissal
– The employee will be automatically unfairly
dismissed if they can show that the reason, or
principal reason they were dismissed was because
they made a protected disclosure
– The employee needs to establish a causal link
between the whistleblowing and subsequent
dismissal

22. Legal background
• Remedy
– Unlimited damages
– Injury to feelings cannot be awarded in dismissal
claims but can be in detriment claims up to the
point of dismissal
– Highest reported award is £3.8m, average award is
£113,667

23. Whistleblowing
• Regulators
– If an employee brings a Tribunal claim against an
employer, the ET1 form asks them if they would
like a copy of the ET1 to be passed to the relevant
regulator
– The relevant regulator may then investigate the
employer which is entirely separate to the tribunal
claim

24. Whistleblowing, practical steps

25. Practical Steps
• Widespread recognition during the 1980s and
1990s that many organisations (public and
private) had a culture which discouraged the
reporting of wrongdoing
– Whistleblowers were ignored or their careers
were damaged

26. Practical Steps
• However, PIDA was only meant to be part of
the solution. It imposes no obligation on
employers to encourage whistleblowing or to
implement a whistleblowing policy
• Government hoped to foster:

27. Practical Steps
“a climate of openness and transparency in which
individuals in the workplace do not feel that they will
be victimised if they draw attention to wrongdoing”
- Hansard 1999
PIDA was not a substitute for
“cultures that actively encourage the challenge of
inappropriate behaviours”
- Committee on Standards in Public Life 2005

29. Practical steps
• Negative publicity
– Employer of choice
– Relationships with customers
– Relationships with suppliers
– Relationships with investors
• Disruption
• Legal fees!

30. Whistleblowing policy
• Compliance and internal control – means that
problems are addressed early and avoids
serious damage or reputational loss
• Avoids external disclosures – less likely that
an employee will feel that they have to blow
the whistle externally
• Minimising litigation risk – less likely that an
employee will be dismissed of suffer
determent

31. Whistleblowing policy
• Avoiding criminal liability for bribery – The
Bribery Act 2010 created a strict liability
corporate criminal offence where an
organisation fails to prevent bribery by a
person “associated” with it. Defence is that
the company had in place adequate
procedures to prevent bribery

32. Whistleblowing policy
• Public bodies – government expects written
policies, part of annual audit process
• Listed companies – UK corporate governance
code requires UK business to have
whistleblowing arrangements, or explain why
not
• US Companies – and subsidiaries required
under Sarbanes-Oxley Act (SOX) to have
whistleblowing arrangements

33. Whistleblowing policy
• Convey seriousness
• Encourage employee to raise concerns
internally
• Remind employee of the standards of
behaviour
• Ensure employee know who they can
approach

34. Whistleblowing policy
• Outline investigation procedures and how
procedures might link with other procedures
such as a grievance procedure
• Make it clear that victimisation of
whistleblowers is not permissible

35. Whistleblowing
Business ethics
Health & Safety
Regulatory codes
Disciplinary rules/
procedure
Confidentiality
EqualityEmployment contract
Grievance procedure

36. Who should handle disclosures
• Advisable to appoint named individuals
• Possibly outside of direct line management,
such as HR
• Could be a nominated “Whistleblowing
Officer”
• Access to board director
• Telephone hotline in larger organisations

37. Application of policy
• Should the policy apply to others who fall
outside of the definition of “workers” within
PIDA
– Self-employed workers outside of the NHS
– Volunteers
– Contractors and sub-contractors

38. What to cover
• Should the policy be limited to the six areas
making the disclosure a “qualifying disclosure”
• Strong argument that employers should
encourage other disclosures
– Unethical behavour
– Breaches of professional conduct which fall short
of being unlawful

39. Encouraging early disclosure
• May be unhelpful to require employees to
hold a reasonable belief before making a
disclosure
– May feel that they need to gather evidence
– May feel that they need to protect their own
position
– “reasonable suspicion” may be better wording
Dame Janet Smith’s report on the Shipman enquiry

40. Protecting Whistleblowers
• Provide guidance and support
– External counselling such as an EAP
– Provide access to training individuals who can
offer guidance and support
– Public Concern at Work – provide a confidential
independent helpline for whistleblowers

41. Protecting Whistleblowers
• Anonymous disclosures
– Openness should be encouraged however some
employees may lack confidence to come forward
– Can cause problems in identifying whether the
disclosure had been made in good faith (however
remember that this is no longer a legal
requirement)
– EU working party on Data Protection discouraged
anonymous disclosure as the norm

42. Handling disclosures
• Right to be accompanied
– The formal right to be accompanied may not arise
in every incidence where an employee raises an
issue under a whistleblowing procedure,
– However, employees are more likely to feel more
confident about making the disclosure if they are
allowed a companion

43. Handling disclosures
• Investigation
– Investigate promptly
– Investigation by someone who is not directly
involved or may be a witness
– May need to use staff with relevant specialist skills
or knowledge

44. Handling disclosures
• Complaint:
– May be well founded – requiring further
investigation and action
– Raised in good faith but unfounded
– Unfounded and raised maliciously

45. Providing feedback
• Reporting back will assure complainants that
their concerns are being taken seriously
• Less likely to escalate the matter or take it to
an external regulator or the press
• PCaW recommends dealing with malpractice
openly so that staff are aware of the problems
and can be confident in the procedure

46. Appeal
• There needs to be an internal mechanism to
allow a dissatisfied employee to escalate their
concerns to a senior employee
– Should have the authority to be able to act
independently and not be afraid to overturn
previous decision
– Should not have previously been involved in the
matter or its investigation

47. Training
• Make sure that everyone is aware of
whistleblowing. Employees and other workers
should receive training on the companies
policy and procedures
– Can break vicarious liability in detriment cases

48. BIS Guidance
• The Department for Business Innovation and
Skills published updated guidance for
Employers, including a code of practice in
March 2015
• https://www.gov.uk/government/uploads/syst
em/uploads/attachment_data/file/415175/bis
-15-200-whistleblowing-guidance-for-
employers-and-code-of-practice.pdf

49. Thank you
We are running an Employment Law Update
on 30 June 2015
With guest speaker on immigration for HR managers
For more information or to book a place, please
Email maugustus@scraselaw.com
Twitter - @scraselaw
Scrase Law Limited t/a Scrase Employment Solicitors. Whilst every effort has been made to ensure the accuracy of
these notes, the information contained within them is not comprehensive and does not constitute ‘advice’. You
should not take action without first seeking professional advice.