Whistle-blowing – has the law changed?

The law protects individuals who report certain types of wrongdoing which they reasonably believe is in the public interest. This individual is often referred to as a whistle-blower and an employer cannot treat the individual unfairly because they reported the wrongdoing.

To be a whistle-blower, the individual must disclose information which he or she reasonably believes (and is in the public interest) that one or more of the following matters is either happening, has happened, or is likely to happen in the future.

1. A criminal offence;
2. The breach of a legal obligation;
3. A miscarriage of justice;
4. A danger to the health and safety of any individual;
5. Damage to the environment;
6. Deliberate attempt to conceal any of the above.

The law refers to a report of this nature as a “protected disclosure”.

The law is clear that to have the legal protection, the individual must disclose information. If it does not disclose information, it will not be considered a protected disclosure. Since an Employment Appeal Tribunal’s decision in 2009, lawyers and Tribunals have often distinguished between statements which are allegations and statements which give information. This is because an individual who merely makes an allegation will not have the necessary legal protection. As an example, a school teacher who asserts “the school is jeopardising the children’s health and safety” is not giving any information as to how the school is putting its pupils in danger. In contrast, a teacher who states “there is broken glass on the floor where the children play” is giving information which shows that the pupils’ health and safety could be in danger. One statement is a mere allegation and does not convey information whilst the other does.

In the recent case of Kilraine v London Borough of Wandsworth, Mr Justice Langstaff, then president of the Employment Appeal Tribunal, sought to give more guidance on this issue. He criticised the previous focus that tribunals and lawyers placed between examining whether a report was a statement of information or an allegations. He noted that very often an allegation is intertwined with information. Therefore to ask whether a statement is information or an allegation “is nothing to the point”. The question is simply whether the report disclosed information.

The judgment does not change the law. A statement by a school teacher that states “the School is jeopardising the children’s health and safety because there is broken glass left lying on the floor where the children play” is clearly an allegation. At the same time (and subject to other conditions), it is able to constitute a protected disclosure.

Nevertheless, the judgment serves as a useful reminder to businesses to be mindful of how they react when a member of its workforce raises a complaint. If a member of staff reacts unfavourably to the complaint / report of wrongdoing, the employee will be able to pursue claims in the Employment Tribunal. Such actions could also make the business susceptible to a claim for constructive dismissal and breach of contract. There is no limit on the amount of compensation which a Tribunal can award and therefore an inappropriate reaction could have significant consequences.

It is important that employers ensure they have an up to date whistle-blowing policy in place. This will ensure that its staff members and management are aware the correct steps to take when reports of wrongdoing are made and to ensure that costly errors do not take place.