We regularly deal with whistleblowing issues which arise out of workplace matters concerning discrimination, sexual harassment and sexual assault.
Whistleblowing law is often relevant to consider when looking at instances of discrimination and harassment where the worker concerned has made a complaint. Whether a whistleblowing claim can be made depends upon a number of prerequisites. No minimum period of employment is necessary to bring a claim and there is no statutory limit to compensation that can be awarded by a Tribunal. Generally speaking, whistleblowing will give rise to a possible claim if the disclosure is made by the worker to a certain prescribed person and the worker reasonably believes that it was made in the public interest and that the disclosure involves, for example, the following:
Information tending to show that a criminal offence did, or is likely to, occur;
Information tending to show that the health and safety of somebody is at risk; or
Information tending to show that a breach of an organisation’s legal obligations did, or is likely to, occur.
Complaints about discrimination, sexual harassment and sexual assault could well involve disclosure of information tending to show one or more of the above. The information disclosed does not in fact need to be true, but the worker must genuinely and reasonably believe it to be so.
If an employee or worker is dismissed for making a protected disclosure (as defined above), they will be able to claim for financial loss arising from the dismissal (caused by whistleblowing) regardless of length of service. If they suffer any other detriments, they can also bring a claim for the impact of the detriments on them. Compensation can, however, be reduced by the Tribunal if it concludes the disclosure was not made by the worker in good faith.
In a recent Employment Tribunal case, a Judge held that it was unlawful for an employee to be treated unfairly on the basis that the employer believed that the worker was considering whistleblowing.
Whistleblowing protection applies to workers, not just employees. The general definition of worker can be found in the Employment Rights Act 1996, being a person who works under either an employment contract, or any other contract in which they are performing work for a person who is not a client or customer of a business run by themselves. Trainees and agency workers are also protected against detriments arising from whistleblowing.
When is something in the “public interest”?
The key question will be whether the whistleblower’s own belief that their disclosure was in the public interest is objectively reasonable. Therefore, the public interest test can be satisfied even if there was in fact no public interest in the disclosure being made.
A disclosure does not need to be in the interest of the general public to be protected by whistleblowing law; it is possible for the “public interest” to relate to a small group of people if it has wider potential ramifications, and breach of a legal obligation can include breach of an employment contract as long as the public interest element of the test is engaged.
How can we help?
If a person has experienced or observed discrimination, sexual harassment, or sexual assault and believes they may have blown the whistle when disclosing information related to these acts, Farore Law can assist and provide advice on the optimal course of action. This may involve including whistleblowing alongside the claims of discrimination and harassment in the internal grievance, or in the legal claim if the worker believes they have suffered a detriment because of it.
Where there are regulatory bodies involved, we have many years’ experience of dealing with complaints to the regulator, a person’s obligation to report to a regulator, and how to protect a person against suffering detriments arising from whistleblowing to a regulator.
By way of one example, if worker A complains to his or her employer about sexual harassment or assault committed by fellow worker B outside the office, the employer may say that the harassment or assault did not occur in the course of B’s employment, and as such the complaint does not amount to a protected act which protects Worker A from victimisation. However, the complaint will very likely amount to a protected disclosure for the purposes of whistleblowing law because it may well be reasonable to believe that disclosing the assault was in the public interest and it does not matter if the assault did not take place in the course of A’s employment. Worker A is then protected against suffering any detriment because of making that disclosure.