As the pandemic continues, employers need to ensure that they are well prepared to deal with any concerns raised by workers including health and safety related whistleblowing complaints.
Who is protected in terms of the whistleblowing legislation?
To be protected by the whistleblowing legislation, workers have to have made a 'protected disclosure'. This means, among other things, that there will have been a disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the types of wrongdoing or failure listed in the legislation has occurred, is occurring, or is likely to occur.
This list of wrongdoing includes disclosures about the danger to the health and safety of any individual; a breach of any legal obligation; and criminal offences. It may concern the conduct of the employer, an employee, or some third party. The legislation dictates to whom a qualifying disclosure can be made to be protected.
Workers have the right not to be subjected to any detriment (e.g. disciplinary action, loss of work) on the ground that they have made a protected disclosure. The dismissal of an employee (or their selection for redundancy) will be automatically unfair if the principal reason is that they have made a protected disclosure.
Even if a worker has not yet made a protected disclosure, if you are aware that they are considering it or preparing to do so then they may be protected against detriment and dismissal in terms of the whistleblowing legislation.
Could we see a rise in whistleblowing cases as a result of COVID-19?
Given the continued prevalence of the virus, we expect to see a rise in the number of these types of claims being raised by workers (including employees). For example, individuals may seek to challenge health and safety measures that have been taken or not taken by their employer and/or any subsequent treatment meted out to them. Such treatment might include disciplinary action, loss of work or pay, denial of training, ostracism, closer monitoring, bullying or harassment, victimisation, threats, failure to investigate a subsequent concern or damage to their career prospects. Employees looking to challenge their dismissal or selection for redundancy may also seek to raise health and safety concerns.
What should we do if we receive a whistleblowing complaint?
If a worker blows the whistle by alleging that you have failed to meet your health and safety obligations, it's important to investigate these allegations promptly and in accordance with your whistleblowing policy. While conducting a whistleblowing investigation:
- Do adopt an objective and balanced approach towards any allegations made under a whistleblowing policy
- Do face the substance of any disclosure square on
- Do listen actively to what the worker has to say and take it on board
- Do take prompt action to investigate any allegations made under a whistleblowing policy
- Do encourage the worker who has come forward to make a disclosure to explain fully their evidence
- Do ask the whistleblower to provide specific examples of the conduct that they have observed or the evidence obtained to support the allegations of malpractice
- Do distinguish between facts and opinions
- Do appreciate that it can be very stressful for the person alleging wrongdoing
- Do let the whistleblower know that they have your support
- Don't get angry or defensive if an individual raises allegations of malpractice within the organisation
- Don't allow personal views about the whistleblower to influence the assessment of the allegations they are making
- Don't react negatively to a disclosure, or adopt a judgmental attitude
- Don't dismiss a disclosure as an exaggeration, or as trivial, unless there is clear evidence that the allegations are unfounded
- Don't attempt to suppress evidence of wrongdoing
- Don't penalise an individual for making a disclosure that proves unfounded if, despite making a mistake, they had reasonable grounds to suspect the wrongdoing
- there's no qualifying minimum period of service for raising whistleblowing claims;
- there's no upper limit on the amount of compensation that can be awarded;
- in certain circumstances, a tribunal can grant an employee who has been dismissed interim relief by making an order for the continuation of their employment pending final determination of their whistleblowing case; and
- there is significant potential reputational damage and/or adverse publicity that could result from allegations of wrongdoing being aired at a public hearing,
it is important to conduct a fair investigation into any concerns raised; and ensure that employees (and workers where appropriate) are not subjected to any detriment or dismissed as a result of raising their concerns.
Keep communication channels open
Having an effective whistleblowing policy and process in place is invaluable. However, given the continuing increased focus on health and safety in the workplace, equally important just now is the need to keep communication channels open at all times. Encouraging early dialogue might help prevent any concerns workers have from developing into formal whistleblowing complaints.
Please get in touch with a member of the employment and immigration team should you wish to discuss anything raised in this blog. Practical guidance on dealing with whistleblowing complaints is also available on our online HR and employment site, Workbox by Brodies. To request a free trial of Workbox, please click here.