Blowing The Whistle – The Rights Of Whistleblowers

After a key case was brought to the Court of Appeal recently, we delve deeper into what exactly whistleblowing is and the rights of those who ‘blow the whistle’.

In June 2013, whistleblowing laws were altered so that a worker must have reasonable belief that he or she was blowing the whistle ‘in the public interest’ in order to be protected. This led to the case of Chesterton Global Ltd (t/a Chesterton Humberts) and another v Nurmohamed being brought to the Court of Appeal.

Mr Nurmohamed, a manager within a large estate agent, raised concerns about a new commission structure that had recently been implemented in the workplace. He argued that the inconsistencies he found within the new structure were deliberate and that the accounts were being manipulated by management to the benefit of shareholders. As a result of this, management dismissed Mr Nurmohamed.

He raised an unfair dismissal claim in the employment tribunal, citing that the dismissal was automatically unfair because he had made a protected disclosure and was penalised for doing so. Both the employment tribunal and EAT accepted that he reasonably believed that the disclosure was ‘in the public interest’ due to the fact that the 100 or so managers of the estate agent were also affected by the issue with the commission structure.

There is no doubt that more of these kinds of cases will be brought to the Court of Appeal in the near future; but what exactly is a whistleblower, and what rights do they have from the outset?

What is a whistleblower?

A whistleblower is an employee of a business who reports certain types of wrongdoing in the workplace, such as engaging in an unlawful conduct or the suppression of information which may lead to breaches of the law or the endangerment of others. Importantly, the report about wrongdoing has to amount to what the law would regard as a “Qualifying Disclosure”.

Whistleblowing concerns usually relate to the behaviour and conduct of workplace staff or their managers, but it can sometimes also relate to the actions of third parties, such as customers or suppliers to the business.

What is the difference between blowing the whistle and making a complaint?

A complaint is normally in relation to a single individual and could be the result of unfair treatment by a co-worker or a breach of their contract of employment. A complaint such as this would normally be presented by an employee and, most likely, handled by employers as a grievance. This is due to there being lacking a ‘public interest’ concern, whereas a disclosure of information by a whistleblower usually relates to something that does not just have a personal impact on the individual, but will or may have wider implications for either the employer or a third party.

What counts as whistleblowing?

You are protected by law if you report any of the following issues:

• The threat to somebody’s health and safety
• Fraud or another criminal offence
• Risk or actual damage to the environment (e.g. harmful gases)
• A company is breaking the law (e.g. doesn’t have correct insurance etc.)
• A miscarriage of justice
• You believe that somebody is ‘covering up’ some form of wrongdoing

What legal protection do whistleblowers actually have?

Under the Employment Rights Act 1996, if an employee of a business blows the whistle on their employer, they will receive legal protection from being dismissed as a direct result of their whistleblowing.

Under this law, dismissal as a result of whistleblowing is automatically unfair and an employee does not need two years’ continuity of service to bring such a claim in the Employment Tribunal.

Compensation against unfair dismissal as a result of whistleblowing is also uncapped. In relation to victimisation claims, a tribunal can award also unlimited compensation for financial loss and injury to feelings in the same way as standard discrimination claims do.

MORE INFORMATION 

If you require more legal advice on whistleblowing or are thinking of blowing the whistle on your employers, please contact our Employment Department – our team of expert solicitors will be able to assist. Call on 01708 229444 or email us using our contact form.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of June 2017.