What is the difference between a protected whistleblowing disclosure and a grievance?

It is not always clear whether an employee is raising a grievance or making a protected whistleblowing disclosure. However, it is important to be able to recognise the difference in order to be in a position to react appropriately and follow the correct process.

What is a protected disclosure?

While not defined in legislation, whistleblowing is the disclosure of information which relates to a suspected wrongdoing or danger in the workplace. To be protected by the 'whistleblowing legislation', workers must have made a 'protected disclosure'.

For a disclosure to qualify as a 'protected disclosure':

1. It has to disclose information, not merely allegations;
2. It must convey facts which the worker reasonably believes tend to show that one or more of the six specified types of malpractice or failure has taken place, is taking place or is likely to take place. The categories of wrongdoing covered are criminal offences; breach of any legal obligation; miscarriages of justice; danger to health and safety; damage to the environment; or the deliberate concealing of information about any of these things;
3. The worker must reasonably believe that the disclosure is in the public interest; and
4. It has been made to one of the categories of people listed in the legislation, and the relevant conditions for disclosing to that person must have been met.

Whistleblowing protection can apply even if the worker has not yet made a protected disclosure, where the employer is aware that the worker is considering doing so. Further, disclosures made after the termination of employment can be protected, provided there is some connection between the disclosure and the former employment.

Protection for whistleblowers

Workers have the right not to be subjected to a detriment on the ground that they have made a protected disclosure. A detriment can include disciplinary action, denial of promotion, a reduction in hours and harassment, for example.

The dismissal of an employee, or their selection for redundancy, will be automatically unfair if the reason (or, if more than one, the principal reason) for dismissal is that they have made a protected disclosure. Importantly, there is no minimum service requirement in order to bring a whistleblowing unfair dismissal claim and no cap on the amount of compensation that may be awarded.

Protected disclosure v grievance

A grievance is a complaint about something which concerns an employee individually and which relates to their employment or working conditions e.g. a complaint about how they are being treated by their line manager.

Sometimes it can be difficult to tell whether a complaint is being raised as a grievance or as a whistleblowing disclosure. For instance, a complaint about working hours may appear initially to be a grievance but could, if it relates to a group of employees being forced to work certain hours, be a disclosure that an employer is breaching the Working Time Regulations 1998.

The individual making a disclosure may not necessarily specify that they believe that they are making a protected disclosure. Employees may even submit a grievance and later claim this was them 'blowing the whistle'.

On receipt of a grievance, employers should think about whether it might fall within the parameters of their whistleblowing policy, and so which process to follow. Consider the following:

• Does the grievance relate to one or more of the six types of 'wrongdoing'? For example, if an employee complains about wires being strewn across the office floor, question whether they are raising a grievance or expressing concerns that health and safety rules are being violated.

• Could the complaint satisfy the public interest requirement? Think about the number of people affected; the nature of the interests affected and the extent to which they are affected by the wrongdoing; the nature of the wrongdoing; and the identity of the alleged wrongdoer. This can be particularly difficult to assess in the context of a sexual harassment complaint.

It is important to conduct a fair investigation into any whistleblowing concerns because, in addition to the protection the person blowing the whistle has, significant reputational damage and/or adverse publicity could result if allegations of wrongdoing are ultimately aired in public.

HR Academy: whistleblowing

We are seeing a notable increase in queries and tribunal claims involving whistleblowing. At our first Brodies Academy for HR Professionals for 2024 we will cover:

• A recap of the whistleblowing legislation, including what is whistleblowing?
• Differences and interaction between whistleblowing and grievance policies
• Practical guidance for what to do when an employee blows the whistle – investigating and giving feedback
• Key legal risks and pitfalls to avoid
• Obligations owed by HR/the business to regulators and other third parties

In addition, we are going to be joined by the team at SeeHearSpeakUp, an AAB Group Company who will give a demonstration of their confidential whistleblowing service.