27 May 2021 #Employment
Whistleblowers are in the headlines following the Dyson report into the Panorama interview in 1995 with the Diana, Princess of Wales. Lord Dyson found that Martin Bashir had acted deceitfully in the way he obtained the interview with the Princess of Wales.
Since the publication of the report, press attention has also turned to how the BBC may have treated insiders who tried to expose Bashir’s methods. Today people who blow the whistle at work are protected from being dismissed or from suffering some other detriment.
In its response to the Dyson report the BBC said that since the Panorama interview it had introduced a whistleblowing policy in the late 1990s taking into account the Public Interest Disclosure Act 1998. The policy was re-launched in 2016 as part of its internal communications programme on ‘speaking up’
Today every employer, whatever their size, should have a whistleblowing policy and a named whistleblowing officer for workers to report to. Whilst few situations will reach the high drama of the Panorama interview virtually all employers will have to deal with whistleblowing issues at some point.
Whistleblowers who are dismissed do not need to have the usual two year’s length of service before they can bring an unfair dismissal claim and there is no cap compensation that can be claimed for loss of earnings. As a result, whistleblowing claims of doubtful merit can sometimes be brought by employees trying to circumvent their lack of statutory rights or to increase their levels of compensation.
The legislation on whistleblowing is quite technical. The place to start for employers looking to defend a whistleblowing detriment or dismissal claim is to first establish if a qualifying disclosure has been made. Then assess if that qualifying disclosure has been made to the right person which turns it into a ‘protected disclosure’.
To qualify for whistleblowing protection the worker needs to pass all of the following tests:
When is a qualifying disclosure protected?
Finally the worker must make the disclosure to one of the categories of people listed in the Employment Rights Act. In most cases this will be a person in some senior position to the workers or the person named in the employer’s whistleblowing policy. In some cases the disclosure may be made to organisations on the ‘prescribed person lists rather than the employer. This includes HMRC, the Health and Safety Executive and the Financial Conduct Authority. The Government has published the list of prescribed persons on-line.
In the next part of this whistleblowing series we will be covering an overview of causation and the burden of proof in whistleblowing and detriment claims, and was the protected disclosure the reason for the worker’s treatment or can the employer demonstrate a legitimate reason unconnected with the disclosure?
For further legal advice on whistleblowing contact our employment lawyers.