Blowing the whistle

Many employers will have whistleblowing policies in place, which state that openness and transparency are welcomed. But why is that so important, and what happens when an employee’s activism (whether in or outside of work) clashes with their employer’s interests?

Firstly, employers need to be aware of when issues raised by employees may amount to a protected disclosure (known as ‘whistleblowing’), and to be equipped to deal with such disclosures well. By way of summary, a protected disclosure is:

• A disclosure of information – mere allegations will not suffice; actual information has to be conveyed.
• To a relevant person – this includes the worker’s employer but also, in certain circumstances, regulators and other prescribed persons such as HMRC, the Information Commissioner and the Environment Agency.
• Which, in the worker’s reasonable belief (note it does not have to be true):
  – Tends to show that one of the following categories of wrongdoing has taken place, is taking place or is likely to take place: criminal offence; failure to comply with a legal obligation; miscarriage of justice; danger to the health and safety of any individual; environmental damage; or deliberate concealment of any the above.
  – And is in the public interest – this will generally exclude grievances personal to the worker e.g. about their working conditions, pay and terms etc. Note that the matter need not affect the public as a whole, a section of the public will suffice: in Chesterton v Nurmohamed, there was a dispute about the calculation of commission payments and the Court of Appeal held that around 100 employees in the same position as the claimant sufficed, taking into account other facts of the case.

Fostering an open culture

Employers should not see whistleblowers as ‘trouble-makers’ but should encourage an open culture in which potential issues are raised and resolved early. Not only will this enable employers to identify and correct any problems before they escalate or become entrenched (potentially avoiding or minimising any compliance or reputational issues), but an open culture will foster staff engagement and assist with staff retention.

This will involve having a written whistleblowing policy that is kept up to date and readily available to staff, training managers and HR staff so that they are able to identify protected disclosures and take appropriate action, acting promptly to investigate disclosures made, and ensuring that whistleblowers are protected from any negative repercussions.

Treating someone detrimentally or dismissing them, because they made a protected disclosure, can give rise to costly and reputation-damaging claims. A dismissal will be automatically unfair if the sole or principal reason for the dismissal is that the employee had made a protected disclosure. There is no qualifying length of service required for this, and compensation is uncapped.

Employees and workers can also bring claims for detriment short of dismissal, where they are subjected to a detriment (such as not being promoted) on the ground that they made a protected disclosure – in these claims, the fact they blew the whistle need only be a causative factor, not the sole or principal reason. Again, compensation is uncapped, but workers can also claim awards for injury to feelings in detriment claims (as with discrimination claims) and, in certain circumstances, these claims can be brought against individuals and employers (see Timis v Osipov as an example).

The government’s Code of Practice on whistleblowing contains useful guidance to employers, including tips on what to include in a whistleblowing policy, and dealing with disclosures.

Balancing act

However, most ‘employee activism’ will not amount to whistleblowing (although with increasing climate change activism, we may start to see more whistleblowing claims relating to ‘environmental damage’). Generally, creating an open culture in which employees are encouraged to ‘bring their whole selves to work’ and speak up about matters they are passionate about will be conducive to the effective handling of protected disclosures.

It also encourages engagement, recruitment and retention, and allows employers to make the most of employees’ creativity and innovation in setting and achieving, for example, environmental, social and governance targets. Employers will need to think carefully about the balance to strike where staff clash, ensuring that views are expressed respectfully and in a manner that does not disrupt the harmony of the workforce or lead to other staff feeling isolated, silenced or, at worst, discriminated against.

With the rise of social media, employee activism outside the workplace can also impact on the employee-employer relationship. Employers should be wary of leaping to dismissal on the grounds that an employee’s actions outside the workplace have brought the employer into disrepute, particularly where the employee has not identifi ed their employer and they are not in a political role.

Employers will also need to be mindful that the employee’s actions may be an expression of a philosophical or religious belief which attracts protection under the Equality Act 2010, and any sanction would need to be proportionate.

Read the rest of the digital edition of the latest Reward Strategy magazine here.