We have been looking at EU whistleblowing law and asked Catrina Flanagan of Herrington Carmichael for her thoughts from a legal perspective on whistleblowing. This is what she had to say:

Definition of Whistleblowing

Whistleblowing is a term used when a worker or an employee makes a disclosure about wrongdoing within a company or organisation.  Provided an employee’s whistleblow meets the relevant legal criteria, the law offers them two levels of protection, these are:

  • The right not to dismissed; and
  • The right not to be subjected to a detriment.

What is a ‘qualifying disclosure’?

In order to show that an individual has made a qualifying disclosure, an individual must show:

  • That they have made a disclosure of information which tends to show that one of a number of types of malpractice has taken, or may be about to take place;
  • That the individual has a ‘reasonable belief’ in the wrongdoing; and
  • That the disclosure is made in the public interest.

Each limb of this three stage test must be met, before the disclosure can be considered a ‘qualifying disclosure’. If any part of the three stage test is not met, the disclosure cannot be considered qualifying and will not be capable of giving the employee protection under whistleblowing legislation.

Is there a disclosure of information?

There are six categories of information which a disclosure can fall into, in order to be a potentially qualifying disclosure (subject to meeting the remaining tests). These categories are:

Importantly, a disclosure must also be a ‘disclosure of information’. It has been established by case law that it is insufficient to make vague or unspecific allegations. A number of different statements can amount to a qualifying disclosure and context surrounding the circumstances in which the information is given can assist in establishing that a qualifying disclosure has been made.

Is there ‘reasonable belief’ in the wrongdoing?

Significantly, an individual does not need to prove that the facts or allegations they disclose are true, provided that they have ‘reasonable belief’ that the information tends to show at least one of the forms of the six types of malpractice mentioned above.  It would therefore not matter if the employee is mistaken for the purpose of achieving whistleblower protection, as long as their belief in the wrongdoing was reasonable and genuine.

Whether a belief is ‘reasonable’ or not would be determined by the Employment Tribunal on a case by case basis, taking into account the volume and quality of the information available to the employee or worker. It is generally accepted, however, that the requirement for ‘reasonable belief’ can be satisfied even where the worker is sceptical about the truth of an allegation, if they reasonably believe their disclosure has enough credibility to warrant further investigation.

The Employment Tribunal will consider a two stage test in determining whether the individual has a reasonable belief in the truth of their disclosure. Firstly, the Tribunal will consider whether the individual’s subjective opinion was that the disclosure was true. If this subjective test is met, the Tribunal will go on to consider, from an objective perspective, whether that subjective belief was reasonable. 

Is the disclosure in the ‘public interest’?

As well as holding a ‘reasonable belief’ that their disclosure shows one of the six relevant forms of malpractice, the worker must have ‘reasonable belief’ that the disclosure is in the ‘public interest’.

Case law has established that a disclosure does not need to be in the interests of the public as a whole; a disclosure which is in the interest of a relatively small group of people can be sufficient.  It is, however, unlikely that a grievance or complaint solely about an individual’s own personal circumstances would be in the ‘public interest’, meaning that in these circumstances, the individual is unlikely to gain the benefit of whistleblower protection. 

Again, the disclosure need not necessarily be in the public interest, provided the worker reasonably believes that it is.  It is important to note that a belief in the public interest need not be the primary motivator for a disclosure.

While an Employment Tribunal would consider all of the circumstances of any particular matter to determine whether a disclosure is in the public interest, case law has given some guidance as to four factors which may be useful in deciding this:

  1. The numbers in the group whose interests the disclosure served;
  2. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed;
  3. The nature of the alleged wrongdoing disclosed; and
  4. The identity of the alleged wrongdoer.

How must a qualifying disclosure be made?

It can be difficult to identify whether a member of staff has made a qualifying disclosure because they do not have to specifically label their disclosure as ‘protected’ nor does it have to be in a specific format, for example, in line with a whistleblowing policy.

Indeed, the recent case of Ibrahim v HCA International Limited has made it clear that employee’s do not need to attach a ‘label’ to the disclosure, or refer to the particular legal obligation or health and safety requirement it is alleged has been breached.  Provided the information discloses facts, rather than mere allegations, and relates in some way to one of the six areas of wrongdoing, it is likely to be qualifying.

It is for this reason that all managers or senior members of staff should be able to identify when a disclosure has been made and act accordingly. If a whistleblowing disclosure is not identified, you may find yourself on the wrong end of a tribunal claim.

When is a ‘qualifying disclosure’ ‘protected’?

A ‘qualifying disclosure’ will become a ‘protected disclosure’ when it is:

  • Made to the employer (or, in limited circumstances, to a third party); and
  • Made in the reasonable belief that wrongdoing has, or may have occurred and that the disclosure is in the ‘public interest’.

How can you identify a ‘protected disclosure’?

Even if a disclosure meets the requirements of a ‘qualifying disclosure’, the individual will still not automatically become ‘protected’ for the purpose of the two statutory claims mentioned at the start.

In order to qualify for the relevant protections, an individual must make the disclosure to one of the following specific categories of people:

  1. The employer;
  2. The person responsible for the relevant failure;
  3. Legal advisers;
  4. Government Ministers;
  5. A person prescribed by an order made by the Secretary of State;
  6. A person who is not covered by the list above provided certain conditions are met.

In general, it is usually the case that a disclosure is made to an individual’s employer, however, it is worth being aware of the other categories in case they arise.

Protection

It is only when all of the relevant tests set out above are met that an employee or worker will be protected from detriment in their employment. Employees also have an additional protection against being dismissed as a result of a protected disclosure (workers do not have unfair dismissal rights).

Practical suggestions

It is important that individuals are aware of their ability to whistleblow and to ensure that there is an appropriate culture within an organisation where everyone feels able to make disclosures. It can be helpful to foster this open culture where people feel able to raise concerns to ensure that any malpractice or wrongdoing can be addressed and rectified.

Having a clear and well publicised whistleblowing policy, and providing staff with appropriate training will help to create an environment where individuals feel able to raise issues without fear of repercussions.

If a situation arises whereby an individual makes a disclosure, that disclosure should be dealt with appropriately. The response to a disclosure will vary in every circumstance, however as a general rule the disclosure should be investigated and appropriate action should be taken. It is important that any individual who is brave enough to make a disclosure is not subject to any form of detriment or even dismissal otherwise they will have the statutory claims set out above. When dealing with a disclosure you should bear in mind the whistleblower and keep them updated. There may be issues around confidentiality which will need to be respected, however employees should be updated (where appropriate) and given reassurance that the necessary steps are being taken.

About Herrington Carmichael

Herrington Carmichael is a full service law firm offering legal advice to UK and international businesses as well as individuals and families

Rated as a ‘Leading Firm 2020’ by the legal directory Legal 500, Herrington Carmichael has offices in London, Camberley and Wokingham. Our historic connection with our local area consolidates our position as a leading source of legal advice in Surrey, Berkshire, Hampshire and the Thames Valley region. 

In 2019, Herrington Carmichael won ‘Property Law Firm of the Year’ at the Thames Valley Business Magazines Property Awards, ‘Best Medium Sized Business/ at the Surrey Heath Business Awards and we were named IR Global’s ‘Member of the Year’.

We believe in our traditional values of excellent service and value for money and our clients appreciate our innovative, proactive and friendly approach. It is the long-term client relationships that are the foundations of our 175 year old business. Contact Herrington Carmichael via Email:  [email protected]

It is important that as an organisation you make sure any individual who is brave enough to make a disclosure is not subject to any form of detriment or even dismissal otherwise they will have the statutory claims set out in this article, and that you have good reporting channels accessible to your employees. For help and advise on how to create a successful speaking up process within your organisation download our free E-book.

If you have any questions or concerns about the content of this article or around the new EU Whistleblowing Directive give us a call and we’d be happy to take you through it and run you through a demonstration of our industry leading employee engagement platform.

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