Whistleblowing Legal Advice

Whistleblowing is the act of reporting wrongdoing, in an organisation to the relevant authorities. It can be done anonymously, but it is often more effective when the whistle blower is identified.

What is a protected disclosure?

Under English law, a protected disclosure is a disclosure of information, either internally within the Organisation or to relevant external authorities, that the whistle blower reasonably believes shows that one or more of the following has occurred:

• Unreasonable behaviour within the workplace that constitutes a criminal offence or threatens someone’s health, safety or welfare.

• Breaches of the law committed by the employer, another employee, or someone else connected with the workplace.

• Cover-ups of wrongdoing within the workplace.

The term protected disclosure means that legally the whistle blower is protected from legal repercussions from their employer.

In the UK, there is a legal obligation for employers to maintain the confidentiality of protected disclosures. This means that employers must not disclose the identity of the whistle blower or the details of the disclosure to anyone unless there is a good reason to do so, such as to investigate or remedy the wrong, without the whistle blower’s consent.

Does the whistleblower have to raise the concern with the employer before raising it externally?

No, there is no legal requirement to go to the employer first. The protected disclosure could be made to their employer, a trade union representative, a government official or regulator) or the media.

It is often advisable for whistle blowers to go to their employer first, but in our experience, this can depend on the severity of the wrongdoing and relationship with the employer and whether the alleged wrongdoing goes right to the top of the employer business.

If in doubt, it is usually important to get experienced legal advice.

Why should employers have a Whistleblowing Policy?

Employers are not legally required to have a whistleblowing policy, but it is a good idea to have one in place. A whistleblowing policy can help to create a more open and transparent culture in the workplace, and can also protect the organisation from legal liability.

A whistleblowing policy should be clear, understandable, and relevant to the business and sector. It should include the following information:

• A definition of whistleblowing with examples.

• A clear position about the employer's approach to finding, remedying and taking strong action against wrongdoing and illegal and unethical activity.

• Protections for the whistle blower.

• The whistleblowing process – see below.

• Prescribed persons - the individual to whom it is suggested a whistleblower should alert to the alleged concerns about wrongdoing.

• Confidentiality.

• Right to be accompanied – by a colleague or trade union representative at any meeting that relates to a protected disclosure the employee has made.

• Support and advice.

Whistleblowing process

The employer should take all reasonable steps to investigate the disclosure promptly and thoroughly. They should also take appropriate action to deal with the matter, which could include taking action against the person who committed the wrongdoing, providing support to the worker, or changing the workplace practices that led to the wrongdoing.

When a whistle blower makes a disclosure, it is important to take it seriously and to investigate the matter promptly. The whistle blower should be kept informed of the progress of the investigation, and they should be protected from legal repercussions.