What is whistleblowing?

23rd June 2023 is whistleblower’s day – a day set aside to mark the work of some individuals to fight for a more just and fair world. 

What is whistleblowing?

Whistleblowing is the term used for making a disclosure of information that attracts protection under employment legislation. To qualify for protection the disclosure must show one of the following:

• A criminal offence has been committed, or is likely to be committed.
• A person has failed, is failing, or is likely to fail to comply with a legal obligation to which they are subject.
• A miscarriage of justice has occurred, is occurring or is likely to occur.
• The health and safety of an individual has been, is being or is likely to be endangered.
• The environment has been, is being or is likely to be endangered.
• Any of the above has been, is being or is likely to be deliberately concealed.

The person making the disclosure must have a reasonable belief that it is true. If the person makes a disclosure to anyone other than to their employer or an appropriate authority (such as the police, the HSE or HMRC), it must also have been made in good faith, without personal gain and in circumstances where they reasonably believe they will be subject to a detriment by their employer.

Whistleblowing disclosures often relate to health and safety or financial fraud. In recent times, examples of a protected disclosure include raising concerns about an employer failing to comply with obligations to keep staff safe during COVID or requiring staff to work whilst on furlough.

Can you spot a whistleblowing disclosure?

The Sellafield whistleblower

Alison McDermott is an HR consultant working through her own limited company. She was contracted by Sellafield for 18 months at a rate of £1,500 per day based on two days per week of work. 

After a few weeks, Ms McDermott advised Sellafield to carry out a formal investigation in relation to allegations of sexual harassment in the workplace and pointed to failures in the HR team in dealing with matters internally. Sexual harassment is of course prohibited by criminal law and equality legislation. 

Shortly after this Sellafield terminated her contract citing budgetary reasons, though they later changed tack and said that it was due to the quality of her work. Ms McDermott lost close to £200,000.

Did this amount to whistleblowing?

It could have, but the Employment Tribunal decided that Ms McDermott’s disclosure did not go far enough to qualify for protection. It also concluded that her contract was terminated on unrelated grounds. Both her claim and her appeal failed.

The IVF whistleblower

Ann Henderson was an embryologist at the Glasgow Fertility Clinic for almost 20 years. She raised concerns about a number of things including staff shortages, lack of staff skill and too high workload leading to an unacceptably high risk of errors being made in the clinic. Ms Henderson also alleged that patients were being misled about their prospects of success. Fertility clinics are regulated and under legal obligations in respect of the quality of clinical work and the information shared with patients.

Shortly after this, Ms Henderson was dismissed for misconduct.

Did this amount to whistleblowing?

Yes. The Employment Tribunal analysed emails exchanged about the issues in the laboratory and decided that Ms Henderson had raised concerns that the clinic was or was likely to be in breach of its legal obligations. 

However, the Tribunal concluded that Ms Henderson was dismissed for acts of misconduct and that, although her disclosures formed part of the overall picture, they were not the sole or principal reason for dismissal. Though in another twist, the Tribunal concluded that Ms Henderson’s dismissal was nevertheless unfair and another hearing has been arranged to decide compensation.

What have we learned?

It can be hard to detect whistleblowing. The Employment Tribunal will analyse verbal and written communications about what is said, to who and in how strong terms before deciding whether a disclosure qualifies for protection. 

To be safe, if a member of your team raises concerns about health and safety, the environment or possible breaches of legal obligations be alert to the fact that this could be a qualifying disclosure and take some advice.

If someone whistleblows, view this as an opportunity to investigate their concerns to decide whether any steps need to be taken to resolve them – you may be able to correct a wrongdoing or a perception of wrongdoing that will ultimately benefit the business. You may need to consider how to protect the worker within this process.

If there has been a qualifying disclosure the worker is protected against detriment meaning they should not be disciplined or dismissed for their actions and should not face other retribution. However, this doesn’t prevent you from managing them – provided that you are not making decisions based on their having made a disclosure.