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When the law was introduced under the Public Disclosure Act in 1998 it aimed to provide protection for employees who were singled out or treated unfairly for reporting a wrongdoing in the workplace. In other words it prevents detrimental treatment of workers and allows them to claim compensation if they arent treated fairly.
Fast forward to 2013 and changes to the policy were made to avoid abuse of the system. Changes include; disclosures have to be made in the “public interest” and no longer had to be made in “good faith”, and employees should not be subjected to unfair treatment by colleagues or an agent acting on the employers behalf.
But how does the whistleblowing policy really work And is it really protecting employees and encouraging them to speak out at the same time Lets take a look at how the policy works at present.
What constitutes a whistleblowing
A whistleblowing applies when wrongdoing or misconduct in the workplace is reported providing it comes under one of the following matters; criminal offence, health and safety danger, risk or actual damage to the environment, miscarriage of justice, the law has been broken, or someone is covering up wrongdoing.
Next up, disclosures must be made in the public interest and to a prescribed person or employers. Prescribed persons were introduced if an employee doesnt feel comfortable announcing the issue directly to their employer and allow disclosures to be made to a relevant organisation. And all disclosures made should be backed up by evidence which add merit to any claims made, and not be an allegation of malpractice. In terms of evidence, information obtained should be clearly documented and be information which cannot otherwise be obtained via public information or other government sources. Anything disclosed should be new information which is in the public interest.
When a whistleblowing doesnt apply
Although the policy was introduced in order to protect employees and encourage them to speak up and report misconduct in good faith there are some situations where the whistleblowing law doesnt provide protection.
As mentioned anything disclosed should be reported to a prescribed person a full list can be found on the government website however, if you make a disclosure to the media or someone not on the list then you may find that the law cannot protect you.
Reporting directly to the media in the first instance may imply that you are acting for personal gain. Similarly, if you wish to remain anonymous then you are protected, however if you wish to go public then you could risk your protection rights.
Read more to find out what the big policy concerns are.
Claimant dealings
The whistleblowing policy exists to protect employees from unfair treatment and as such how claimants are dealt with depends on how the disclosure was made, who it was told to, and whether others are involved. If you have been treated unfairly then your case can move forward to an employment tribunal. However claims which are paid out can vary according to how the disclosure was made.
Policy concerns
Introduced following a spate of rail and financial disasters in the 80s and 90s, whistleblowing is a law which has stood the test of time, but many have been calling for changes to be made to the policy following concerns it isnt doing enough to protect employees.
Read more articles about whistleblowing:
- Time’s up! How to blow the whistle on wrongdoers in the workplace
- Don’t shoot the messenger: How to build a whistleblowing system
- Top tips on whistleblowing
With 82 per cent of those who work for SMEs claiming they would feel comfortable in reporting illegal or unethical workplace practices, and a jump in whistleblowing reports to the pensions regulator in the last year, it seems many employees are confident in disclosing wrongdoing in the workplace, so why isnt the law protecting them in the way the policy is intended to do so
A recent NHS report found a junior doctor was treated unfairly after an associate company of the NHS responsible for his training and career progressions questioned his performance and conduct. Whilst it was argued that the body wasnt an employer of the worker and no wrongdoing was found on their behalf, the 2013 revision states that unfair treatment of colleagues or an agent is not allowed.
Concerns have also been raised across the pond in America with Edward Snowden who leaked numerous classified NSA documents to the media calling for an overhaul of the policy. Admittedly, Snowdens leaks werent disclosed in the correct manor he highlights lack of employee protection and fear of retaliation as a reason for disclosures not always being made properly.
The whistleblowing policy is there to protect, but clearly more needs to be done to insure iron clad protection is provided for employees. A culture where employees feel confident speaking up should be created and they should have the confidence to do so without fear that their job could be put at risk.
Luke Hutchings is head of employment at Taylor Rose.
Meanwhile, with Benjamin Koh of CommInsure having just spilled the beans on the companys wrongdoings claiming doctors were pressured to change their opinions, outdated medical definitions were used to deny payouts and medical files disappeared we take a look at how the act of whistleblowing could bring about corporate change.
