Recognising and avoiding a whistleblowing claim – Covid-19

With the increased possibility of employees returning to work in physical offices and the easing of restrictions, employers need to be alive to the changing dynamic of workplace issues that may arise. Here we give you some practical guidance on how to recognise and therefore avoid a whistleblowing claim.

When do protected disclosures arise?

Health and safety and the welfare of employees has been paramount during the pandemic and we have seen a rise in health and safety-related employment tribunal claims. What employers need to be aware of is that not only can employees address and raise such concerns on an individual basis, but also when they may have a public interest element.

One example that is commonly cited is an employer’s failure to provide adequate PPE for employees who are customer/public-facing (hospital staff, care home workers, shop workers). This is a personal health and safety issue for an individual but is also a public interest issue on the basis that the lack of PPE can have a wider reaching effect in terms of the spread of Covid-19. An employee can raise a grievance, citing a breach of health and safety, which can also amount to a protected disclosure for the purposes of whistleblowing legislation.

What does a protected disclosure look like?

There must be a disclosure of information which the employee reasonably believes relates to a relevant failure which is in the public interest.

The disclosure of information usually comes in writing and is by way of a grievance or correspondence with the employer. The disclosure can also be made to another prescribed person, which might include a regulator, legal adviser or government minister.

The disclosure should detail what relevant failure the employee thinks has taken place, being one of the following:

• Criminal offence
• Breach of a legal obligation
• Miscarriage of justice
• Danger to the health and safety of an individual
• Damage to the environment
• Deliberate concealment of information relating to any of the above.

The employee does not have stipulate any breach of legislation but need only give sufficient information to enable the disclosure to relate to one of the above. The employee only has to reasonably believe that this failure has happened – there is no need for certainty. Similarly, the employee only needs a reasonable belief that the disclosure is in the public interest.

What to do next?

If you believe, as an employer, that you are the recipient of a protected disclosure, what do you do next?

• Act quickly and follow your internal procedures
• Engage with the employee and confirm that their concerns are being taken seriously
• Investigate, even if you do not consider the disclosure to have any merit
• Provide feedback to the employee and a report on your findings
• If there is any truth in the disclosures, admit this to be the case and put remedial measures in place
• Ensure the employee responsible is not subjected to any detriment in the workplace.

The key to dealing with whistleblowing disclosures is communication and openness. The higher the level of engagement and efficacy of resolution, the less likely an employee is to pursue a tribunal claim.

What can be claimed?

If an employee is dismissed because they raise a protected disclosure, they can claim:

• Interim relief and, if successful, will receive their full contractual pay until their case reaches a final hearing (without having to provide services)
• Automatically unfair dismissal, without the need for two years’ qualifying service
• Uncapped loss of earnings and an injury to feelings award.

An employee can also claim if they are subjected to a detriment and this claim can be pursued both against the employer and those individuals responsible for imposing the detriment.

Whistleblowing claims can be costly and reputationally damaging. If faced with a complaint that resembles a protected disclosure, act quickly and take advice. Escalation can easily be avoided.