Confusion over whistle blowing can leave employees unprotected

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During the pandemic, the subject of whistleblowing has come to the fore with more and more employees expressing concerns over health and safety and breach of regulatory issues in the workplace. Solicitors Brindley Twist Tafft & James share their views with Business Leader.

With employees now starting to make their return to the workplace whilst restrictions remain in place, it is a trend which is not only set to continue, but likely to escalate.

A protected disclosure is any disclosure of information which, in the reasonable belief of the worker making a disclosure, is made in the public interest and tends to show one or more ‘relevant failures’.

It falls within the Public Interest Disclosure Act 1998, whereby employees are fully within their rights to raise such concerns, particularly if they are concerned about their safety or safety of others.

Indeed, it was created to encourage employees to highlight issues or a wrongdoing in the workplace without fear of being dismissed by their employers as a consequence, even if they have been employed less than two years.

Under the terms of the law, employees can claim unfair dismissal, irrespective of their length of employment, if they are made redundant or victimised following ‘blowing the whistle’ on serious issues within the workplace.  However, if employees are to receive the legal protection they are entitled to, it is important they understand what qualifies as a protected disclosure according to Coventry & Warwickshire solicitors Brindley Twist Tafft & James.

Currently common complaints are over whether a workplace is Covid safe, furlough fraud all of which are perfectly valid reasons however, as Kerry Hudson, Head of Employment at Brindley Twist Tafft & James points out, employees need to be fully aware of the process of ‘blowing the whistle’ before doing so to ensure they are protected.

Kerry Hudson explained: “There is a lot of confusion about what constitutes a protected disclosure. It cannot simply be a passing comment and we have seen a number of cases where employees have thought they have made a protected disclosure and sought the benefit of that, only to find in fact it does not meet the requirements.

“It is a situation which is happening all too often where employees who may not have acquired the minimum two years’ service bring a claim for unfair dismissal on the basis they have been dismissed for having made a protected disclosure (where you don’t have to have the two years) only to later realise that the disclosure did not qualify. Conversely, employers dismissing an employee with less than two years in the belief they will not be able to bring a claim and not realising that if the dismissal was directly related to having made a qualified protected disclosure, in fact can.”

However, this begs the question what constitutes a protected disclosure. Essentially it is a passing on of information where the employee believes that the information disclosed shows a relevant failure or malpractice i.e. breach of a legal obligation such as danger to the health and safety of an individual and that any disclosure was made in the public interest.

Further, disclosures should only be made if the wrongdoing in the workplace is tangible.

Kerry Hudson continued: “Whilst every case will be judged on its individual merits, the general rule is that an employee must raise their concerns in writing(preferred) or verbally to their employer or another person of authority.  Complaining to fellow colleagues, customers or the press is extremely unlikely to provide an employee with the protection under the legislation.

“Any employee is entitled to make a valid observation provided it has been done in the right way. Therefore, we urge employees to have a full understanding of their rights regarding protected disclosure, or seek professional advice, especially if they feel they have been made redundant or mistreated after highlighting an issue or wrongdoing in the workplace.”

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