We are expert in dealing with whistleblowing situations. The law is particularly complicated, but it is helpful that a number of principles are derived from or very similar to the law on discrimination (for example relating to burden of proof, liability of employers and principles, detriment during and after employment, and compensation). Good news for the whistleblower but bad news for the employer, is that compensation awards are not capped and can reach six or seven figures.
It is also important to appreciate that there is no minimum length of service required for an employee be able to make a whistleblowing claim and a claim can be made even while employment continues. If you suspect an employee may seek to accuse your business of wrongdoing, you can expect them also be taking advice on whether they may have a whistleblowing claim. You should also be seeking expert advice without delay.
What makes a ‘whistleblowing’ complaint?
Essentially, the worker simply needs to report an allegation of some unlawful conduct that will affect the public. Let’s break that down.
Firstly the allegation must have some specifics to it – some information that can give a lead for enquiry:
– “The company is breaking health and safety rules” is not enough.
– “The company is sending out its products without sufficient safety checks” may or may not be, depending on context.
– “The company is sending out its products with sharp edges” is likely to be.
Secondly, there must be some public interest in the information being reported. In this context, what is meant by “public” has been left for the Courts and Employment Tribunals to decide on a case by case basis. The current approach is that it need not be the public at large, but could potentially be much more limited – perhaps a section of your workforce or of your customer base:
– “My personal information has been given to someone without my permission” will not be a matter affecting anyone except the worker complaining so there is no public interest.
– “The company’s personnel and customer records are not encrypted and are vulnerable to easy access from outside” would be of interest to the company’s staff and to its customers, both of which groups might be sufficient to be a ‘public’ group. (This example would also indicate a likely breach of the company’s obligations under the GDPR.)
Very often, whether what is complained of amounts to whistleblowing is a matter of keen dispute and will be examined in fine detail. When you instruct us, we will get to the heart of that issue as a priority to bring clarity and guide you accordingly.