Whistleblowing has been brought sharply into focus in light of the press reports on the actions of the management of the hospital the Countess of Chester related to the case of Lucy Letby,involving their response to the whistleblowing raised by the consultants and doctors. There have been widespread calls for the law to protect whistleblowers to be strengthened. Currently the Employment Rights Act 1996 and the Public Interest Disclosure Act 1998 outline the law on whistleblowing.
Whistleblowing, not unreasonably, is often regarded as a “hot potato” for human resources professionals, especially if the issue is sensitive and reflects badly on the business or organisation. There are various behaviours that can be subject of a qualifying disclosure, the term applied to an issue relating to whistleblowing.
The following is a list of conduct that fulfils the criteria for qualifying disclosures:
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- a criminal offence – for example bribery
- the breach of a legal obligation by an organisation – which could be neglect of individuals in care
- a miscarriage of justice – such as firing a person for a mistake that they did not make.
- An action that puts someone’s health and safety being in danger, which could be inadequate scaffolding on a building site
- Damage to the environment – maybe, a factory polluting the environment on a regular basis.
Also an issue that relates to the public interest can also be the subject of a whistleblowing disclosure. However, a disclosure of conduct that contravenes the public interest must relate to something that affects others, such as fellow workers or the general public or is of national importance, such as the recent revelation that there had been as many as 2,000 precious artefacts stolen from the British Museum by a member of staff. A Danish art dealer, Dr. Ittai Gradel alerted the museum’s deputy director, Dr. Jonathan Williams, in 2021 drawing his attention to the fact that items were appearing for sale on E-bay that Dr. Gradel believed were part of the British Museum’s collection. However, he stated that he was “fobbed off” and told the museum was protected despite the fact of Dr. Gradel’s clear evidence.
Giambrone & Partners’ employment lawyers point out that whistleblowing also extends to a person unassociated with the initial behaviour in question who attempts to cover up the illegal conduct, therefore HR professionals who attempt to side-line, pressure or harass the whistleblower are also considered of the guilty of contravening the law. Our lawyers strongly urge that a disclosure of conduct that contravenes the public interest must relate to something that affects others, such as fellow workers or the general public.
Daniel Theron, a partner, comments “however problematic the issues are it is absolutely essential that all concerns are investigated impartially and on no account should the whistleblower suffer any retaliatory actions such as harassment or dismissal following their disclosure. Apart from contravening the law it also can result in an employee taking action in the Employment Tribunal where all the details of the issue will be in the public domain and if successful, not only will the business or organisation suffer financial sanctions. It should be noted that there is no upper limit on the award in unfair dismissal. Additionally, there will be reputational damage that may be hard to overcome” Daniel further advised “clear guidelines should be available to all staff together with the consequences if a member of staff attempts to strike back at the whistleblower.”
An individual who identifies conduct that requires investigation within the organisation that employs them is not obliged to make a disclosure to their employer alone, a disclosure can be made to any of the following if appropriate:
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- a lawyer
- a government minister, if you work for a statutory body
- a person you believe is responsible for the wrongdoing
- an appropriate prescribed person or body
- any other suitable person or body if you have sufficient reason to, or if it’s related to an ‘exceptionally serious failure’ – for example, the police or media
If you have reported conduct under a whistleblowing disclosure and have been subject to such things as being denied an expected or promised promotion, put on a performance process or demoted, if you have been ostracised or bullied, or feel you are being victimised, our highly experienced employment lawyers will be able to advise you as to how you can obtain compensation for such treatment arising from a whistleblowing disclosure. In such a situation your employer will be obliged to demonstrate that such treatment as a result of your whistleblowing disclosure but due to another reason related to your conduct.