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Whistleblowing – it’s a matter of fact

Whistle-blowers play an essential role in highlighting injustice and malpractice in the workplace. By bringing breaches of rules to light, they can help prevent accidents, scandals and even crimes. That's why under UK law it is illegal for an employer to take revenge on someone who has reported wrongdoing, for instance by dismissing them.

But how does an individual blow the whistle? What counts as a protected disclosure that qualifies for protection under the law? How can employers recognise whistleblowing?

Information, not allegation

There is no particular format for a whistleblowing disclosure. It can be verbal or written. It can be in a grievance or a solicitor's letter or by much more informal means. However, it must contain some information.

In the recent case of Kilrane v Wandsworth LBC [2018] the Court of Appeal ruled that it is not enough for an employee to simply make vague allegations - there must also be a disclosure of information to win protected legal status as required under whistle-blowing legislation.

In this case, Ms Kilraine was employed by Wandsworth Council in London as an education achievement project manager. After she was dismissed from her post, she brought a whistle-blowing claim, arguing that she had made protected disclosures during her employment and had suffered both detriment and dismissal as a result.

She claimed she had been subject to bullying and harassment, inappropriate behaviour and a lack of managerial support over a safeguarding issue.

Her claim was dismissed by an Employment Tribunal, a decision upheld by the Employment Appeal Tribunal. It stated that one of the letters Ms Kilraine wished to rely on in relation to her claim did not convey information - and if the word "inappropriate" was taken out, nothing specific at all. Furthermore, there was nothing that alleged a criminal offence, a failure to comply with legal obligations or anything else covered by whistleblowing legislation.

The Court of Appeal agreed that Ms Kilraine did not make protected disclosures in the course of her complaints against her employer.

Whistleblowing policy essential

The decision that there is a distinction between information and a mere allegation may make it easier for claimants to know how to satisfy the requirements for obtaining whistle-blower protection.

Employers need to be alert to public interest disclosures. Whilst grumbles, complaints and grievances will not automatically satisfy the whistleblowing test, they may still contain the necessary information or facts pointing to wrongdoing in the workplace.

A whistleblowing disclosure must contain information to show that - in the reasonable belief of the whistleblower - one or more of the following has taken place, is taking place or is likely to take place:

  • A criminal offence;
  • Breach of any legal obligation;
  • A miscarriage of justice;
  • Damage to the environment;
  • Danger to the health or safety of any individual, or
  • The deliberate concealing of information about any of the above.

Every workplace should have a whistleblowing policy in place, to help employees and workers deal with genuine concerns. Please contact us for details.

For help and guidance about this area of the law, please contact Wards Solicitors' Employment Law Consultant Solicitor, Julia Beasley.

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