If you fail to spot and act upon whistleblowing (otherwise known as making a protected disclosure), the damage to your business can be immense. What can start off as a seemingly straightforward complaint can be used by the cynical employee (or worker, both are covered by the protecting legislation) or their legal advisor to fashion a tribunal claim that would never have got off the ground in normal circumstances or make a fairly simple claim infinitely more complex and therefore more expensive.
Whistleblowing | What you need to know
We often see claims for unfair dismissal getting through the back door by relying on whistleblowing. By way of explanation, an employee cannot bring a claim of unfair dismissal unless he or she has been employed for two years. One way round that time requirement (there are others such as alleging discrimination or that the employee has been penalised for trying to assert a statutory right) is to allege that the dismissal was because the employee made a protected disclosure. If the Claimant wins it’s known as an automatic unfair dismissal. It is therefore vital to your business that you know how to recognise and deal with complaints that may amount to protected disclosures even if the employee has short service.
The Cost to Businesses
In terms of cost, and putting aside paying for solicitors, successful whistleblowing claims are more likely to result in large awards because the individual making the protected disclosure is often a well-paid senior employee. Moreover there is no compensation cap for automatically unfair dismissals for blowing the whistle.
Any tribunal claim will hit your company hard. It will require time from senior managers, typically a number of days in total; it will drain morale as individuals are forced to defend attacks upon their integrity and honesty not to mention the financial cost.
What can you do to Identify a Protected Disclosure?
The truth is they are not always easy to identify and so the trick is to note any complaint made by any employee. That might be an informal gripe to a colleague, a grievance or may even be formally raised under your whistleblowing policy. Get trusted legal advice from our team of Employment Law Consultants for any HR issues you have surrounding whistleblowing.
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Key Guidance for Employers
- Any complaint that seems to relate to Health & Safety and breach of any legal obligations. This last criteria is very broadly drawn and can include an employer’s breach of an employee’s own employment contract. Though tribunals have made it clear that the source of the obligation should be identified and capable of verification by reference, for example, to statute or regulation. In other words seemingly harmless issues can come back to trip you up.
- If someone for example has complained in the past that they haven’t been getting a proper break, that would be a legal obligation. You, as the employer may well have addressed that at the time but there is little to stop that employee belatedly claiming that it was this complaint that led to his or her eventual dismissal.
- An employee, with enough knowledge (enter lawyers and the internet) can exploit pretty much any minor issue to found a claim. Get in touch with our legal team at the right time and we can ensure that any complaint of that nature is identified and dealt with in such a way that it will insulate you as far as possible against the possibility of later litigation.
- The Government has issued a code of practice for employers.
Contact us today for expert Employment Law advice and guidance putting effective whistleblowing policies in place
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