Whistleblowing in the Workplace
4 min read
Malpractice can occur in any setting and its impact can be highly detrimental. People can abuse their position and authority to engage in illegal, unethical or fraudulent activity, causing extensive damage and undue harm. In some instances it’s in the public’s interest to know about this malpractice and so an employee within the organisation may choose to ‘blow the whistle’ and reveal wrongdoings to protect others from harm.
Whistleblowing can be a complex topic that is often met with fear of retaliation. However, it’s vital that as an employee, regardless of what sector or industry that you work in, you understand what to do if you find yourself in a situation in which you need to speak out. In this article we will outline everything you need to know about whistleblowing in the workplace.
What is Whistleblowing?
Whistleblowing is the act of revealing information about malpractice or wrongdoing in a workplace. This could mean disclosing wrongdoings such as unlawful activity within the workplace, health and safety risks that staff are exposed to or a failure to comply with legal responsibilities.
Whistleblowing is legally known as ‘making a disclosure in the public interest’ and the wrongdoing that is exposed must be in the public interest to be classed as whistleblowing. As such, revealing personal grievances, such as tension between colleagues, does not constitute whistleblowing. According to the Equality and Human Rights Commission (EHRC) whether the disclosure is in the public interest will depend on:
- The number of people affected
- The nature and impact of the wrongdoing
- What the wrongdoing is
Why is Whistleblowing Important?
Whistleblowing in the workplace can have a negative connotation and whistleblowers can quickly develop a reputation for causing unnecessary harm by not ‘going with the flow.’ However, it is for this very reason that whistleblowing is important. When malpractice and wrongdoings are ignored they continue to escalate, increasing the scale of damage caused. This can result in irreparable reputational and financial damage which renders a business, and all those who work in or with the business, untrustworthy in the public eye. When employees are indirectly encouraged or pressured to not report wrongdoings that they see, this type of behaviour is normalised and a culture of secrecy and fear is further cemented. Whistleblowing therefore provides organisations with the opportunity to evoke tangible change and foster a culture of openness.
As mentioned above, to be considered whistleblowing the malpractice or wrongdoing that is disclosed must be in the public interest. Therefore, one of the most important aspects of whistleblowing is that it protects the public and provides them with vital information about the services they may be using and businesses they may be patronising. Whistleblowing can also provide vital internal information. Many organisations remain unaware of any illegal or unethical activity that is occurring within their business until it is too late, or the public or police are informed. Whistleblowing can therefore raise awareness of issues within an organisation that otherwise may have gone unnoticed and that may be hindering an organisation’s efficacy and ability to thrive. Whistleblowing enables organisations to therefore handle these issues internally and protect the business from further harm.
Whistleblowing is important in any environment and this is especially true when discussing children and vulnerable people. For example whistleblowing in schools and in healthcare can be fundamental to keeping children safe and maintaining a duty of care towards vulnerable adults. Whistleblowing can therefore play a vital safeguarding role that protects vulnerable people from undue harm.
Whistleblowing in the workplace is important because it:
- Holds businesses accountable
- Protects and informs the public
- Raises awareness
- Protects reputation
- Helps combat against crimes such as fraud
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Examples of Whistleblowing in the Workplace
The Advisory, Conciliation and Arbitration Service (Acas) highlights the following as examples of whistleblowing in the workplace:
- A criminal offence – for example, an employer embezzling money from investors.
- The breach of legal obligation by an organisation – for example, an employer refusing accommodations for a disabled employee.
- A miscarriage of justice – for example, an employee being dismissed for an internal computer error that was not their fault.
- Someone’s health and safety being in danger – for example, an employer refusing to provide staff with adequate personal protective equipment (PPE).
- Damage to the environment – for example, an employer dumping toxic waste in a local river.
You can also blow the whistle on attempts to cover up information about the issues above.
You can whistleblow about an issue irrespective of when it happened. This means that you can disclose past incidents of malpractice or something that you think is likely to happen in the future. It can also be about something that is occurring overseas and you can report more than one qualifying disclosure at a time.
To be classed as whistleblowing the wrongdoing disclosed must be in the public’s interest, meaning it must also affect others. If this is the case, the whistleblower is protected by law. Legally there are several issues about which you can blow the whistle known as ‘qualifying disclosures’ and mentioned above. However, if the disclosure does not qualify as whistleblowing due to the topic, if a criminal act was committed by disclosing the information, such as hacking into computer files, or the disclosure of the information represented a breach of legal professional privilege, there are no legal protections available. We will explore the legal protections for whistleblowers later in the article.
Whistleblowing Procedures
Whistleblowing in the workplace should not be viewed as an ‘inconvenience’ nor should employees be dissuaded from blowing the whistle on any wrongdoing that they see. As such, whilst it is not a legal requirement businesses should have a robust whistleblowing policy that clearly informs employees of the procedure they should follow and the protection they will have. A whistleblowing policy reassures existing and prospective employees that you will take their concerns properly and act accordingly and that you are dedicated to operating legally.
If you have decided that you should blow the whistle on a particular issue then you should first check your organisation’s whistleblowing policy. This should be available from HR or may be contained within the policies that you were provided during your onboarding. Each policy and process will be different but should follow the same general steps.
To make a whistleblowing disclosure:
Decide who to make a disclosure to
You can make a whistleblowing disclosure to:
- Your employer or another person who is responsible for the wrongdoing.
- A legal adviser.
- Government ministers – this only applies if you work for a statutory body.
- A prescribed person or body, for example, a commissioner, an auditor, a regulator or a government authority.
- Any other person or body, for example, the police or the media. However, if you chose this option, there must be a good reason to do so or it must be related to an ‘exceptionally serious failure.’
When deciding who to make a disclosure to, Acas advises considering the list above in order. However, there may be instances in which you do not want to go to your employer first. You should then work your way down the list to the next viable option, however it’s important to remember that you may have to meet additional requirements if you make a disclosure to someone further down the list.
If your disclosure reaches an employment tribunal you may have to give reasons as to why you made the disclosure to that particular individual. You have the right to avoid people on the list if you do not think it would be appropriate to disclose to them, however you must consider every option first.
If you do not feel as though you can make a disclosure to any the above people or bodies you should consider:
- Getting legal advice
- Contacting Protect, the UK’s leading whistleblowing charity
Put your disclosure in writing
If you are making a disclosure to your employer you do not necessarily need to to write it down, however it’s good practice to put your disclosure in writing irrespective of who you make the disclosure to. Putting your disclosure in writing provides you with a valuable paper trial which you may need to refer back to at a later date. This could be in an email or a letter and should include:
- The background and reason behind the concern
- Whether you’ve already raised the concern with anyone else and their response
- Any relevant dates
If applicable you could also include any relevant evidence that you may have such as documentation, photographs or videos. However, Acas reiterates that it is not your responsibility to gather evidence. Moreover, if you take documents or pass them to someone outside of your organisation you may be breaching your contact or other laws which would make you ineligible for the legal protections afforded to whistleblowers.
Submit your disclosure
How you submit your disclosure will depend on who you are submitting it to. If it is your employer then you should follow your internal whistleblowing policy. If your organisation does not have one then you should still aim to speak to your employer first, if appropriate. When speaking to an employer you may choose to verbally disclose the information in a private meeting, however as mentioned it’s a good idea to also have it in writing.
If disclosing to a different body then you should follow the relevant steps to contact them. This may include emailing a prescribed body or calling a law firm for legal advice.
Get additional advice and support
Once you have submitted your disclosure you can seek further advice and guidance from the Acas helpline or Protect.
Legal Protections for Whistleblowers
It is not against the law to blow the whistle and the Public Interest Disclosure Act 1998 (PIDA) legally protects whistleblowers from unfair dismissal and detriment.
It is against the law to dismiss someone for whistleblowing and in most cases this will be treated as automatic unfair dismissal. Detriment refers to someone being treated worse than before or having their situation made worse than before. It is against the law for an employer to treat an employee detrimentally after making a disclosure.
The legal protection for whistleblowers starts from the beginning of employment and by law most people are protected if they make a qualifying disclosure. This includes:
- Workers
- Employees
- Agency workers
- Apprentices
- NHS practitioners
- Student nurses
- Student midwives
- Police
- Office holders
- Self-employed doctors, dentist, ophthalmologists and pharmacists working in the NHS
People are also still protected even if they no longer work for the employer they are making a disclosure about. For example, if a former employer gave you an unfavourable job reference because you made a disclosure when working for them, this would still constitute detriment.
There are some caveats to PIDA and some individuals who are not legally protected. People are not usually protected by law if they’re:
- Genuinely self-employed
- A volunteer with no enforceable employment contract
- A non-executive director
- A member of the armed forces
- A solicitor or barrister learning about an issue covered by professional privilege
- A crown employee dealing with national security – for example, people who work for MI5, MI6 or GCHQ (Government Communications Headquarters)
Some employers may attempt to use non-disclosure agreements (NDAs) to stop an employee from sharing information. However, by law an NDA does not prevent an employee from whistleblowing. Moreover, the government recently announced plans to ban employers from using NDAs to silence employees who have been subjected to harassment and abuse. Whilst this doesn’t relate to whistleblowing as yet, there is arguable overlap in the government’s desire to prevent the use of NDAs to hide the truth.
You can learn more about the legal rights that PIDA provides here.
Whistleblowing in the workplace preserves justice and helps to protect the public. It is not simply ‘snitching’ or ‘causing trouble,’ but a means to hold organisations accountable, raise awareness and protect public interest. Attitudes towards whistleblowing have shifted significantly over the last few decades. The desire for improved transparency, social justice and corporate accountability has made whistleblowing more important than ever. Whistleblowers can provide an invaluable insight into an organisation’s corruption, thereby hindering criminal activity and upholding the law.
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