Whistleblowing and Protective Disclosures

Whistleblowing is a commonly used term for making a protected disclosure. When an employee (or anyone else) makes such a disclosure, they have a right not to be punished or treated any less favourably.

A protected disclosure is a disclosure of information that is made in the public interest, to the relevant party, which highlights a breach of a legal or regulatory obligation. These elements can often be tricky to identify, which poses the first difficulty in handling whistleblowing complaints.

As you would rightly expect, these protections only take place in very specific circumstances, and this is not carte blanche for an employee to say whatever they like to whomever they like and expect there not to be consequences.

It is important to identify those cases, where the disclosure made was a protected one, as you need to be sure that you are not treating an employee any less favourably because of a legitimate protected disclosure.

Having established what a protected disclosure is, the employee then has the right to not receive less favourable treatment. This means that the employee should not be singled out simply because they have made a disclosure of information.

Whilst having made a protected disclosure does not give an employee unlimited protection in all circumstances, it does mean that a degree of caution should be taken, because if they can establish that the change in treatment started following a protected disclosure being made, they may be able to argue that they have been treated less favourably because a protected disclosure has been made.

If an employee feels that they have been treated less favourably and believe that such treatment was due to making a protected disclosure, then they may take further action. This could take the form of:

• A formal/informal grievance
• Tribunal proceedings being issued.

As such, it is important to investigate quickly to ensure that no wrongdoing has occurred.

If the employee raises a complaint via a formal grievance, this gives you an opportunity to address matters internally before the need for tribunal proceedings. It is prudent, when investigating, to focus on whether there has been less favourable treatment or not as opposed to whether there is a protected disclosure. If no less favourable treatment has occurred, it will be irrelevant whether the employee has made a qualifying protected disclosure.

Comparisons may be made against other members of staff who haven’t made a protected disclosure, to see if the treatment was equal and fair. If it is found that less favourable treatment has occurred, it may not be enough to simply state that an employee has not made a qualifying protected disclosure. This is due to case law that suggests, if the parties at the time thought a disclosure had been made and this was the reason for the treatment, it would still be a whistleblowing detriment (even if it subsequently came to light that the disclosure was not a qualifying protected one).

You should also be careful when handling these complaints to maintain confidentiality where appropriate. If the employee has made a whistleblowing disclosure in confidence, investigating this without consideration for confidentiality could lead to further claims being made.

If you need assistance in identifying whether a disclosure of information would likely be counted as a qualified protected disclosure, our employment team can help.

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