Employees who ‘blow the whistle’ are protected from being dismissed or victimised as a result. The formal name is ‘Public Interest Disclosure’ because something only counts as whistleblowing if the information is in the public interest.
The recent case of Chesterton Global Ltd and another v Nurmohamed went to the court of appeal over whether or not the disclosure made by Mr Nurmohamed, an estate agent, was in the public interest. He had raised a concern that there were misstatements in Chesterton Global’s management accounts, which he alleged were designed to reduce the amount of commission paid to around 100 senior managers, including himself.
The employers argued that for something to be in the public interest the disclosure should extend beyond the employer’s workforce. The tribunals disagreed and felt that because it was a deliberate and large scale wrong-doing which fed into statutory accounts of a big player in the London property market, it was in the public interest.
Employers also often don’t realise that, whilst the disclosure must be in the public interest for the employee to be protected, the disclosure doesn’t have to have been made public for it to be counted as whistleblowing. It is sufficient for the employee to raise a concern internally to management. The employee also doesn’t have to state that it is a public interest disclosure, indeed at the time they raise the concern they may not even realise that it could be. However, if that employee subsequently finds themselves being treated badly or unfairly they may make a claim to a tribunal for victimisation as a result of having ‘blown the whistle’.
The tribunal has to determine whether the employee did indeed make a qualifying disclosure (i.e a disclosure about a criminal offence, the breach of a legal obligation, a miscarriage of justice, danger to the health and safety of any individual, damage to the environment or deliberate attempt to conceal any of the these) and, if they did, is it in the public interest. Then they have to decide whether the behaviour the employee is complaining of is really victimisation for having blown the whistle or whether there is no link.
These cases are always complex and time-consuming and can affect all organisations, large and small. You can’t prevent a disgruntled employee from taking a claim to a tribunal but you can minimise the risk by always working to good practices and procedures and by training managers to be fair and impartial in the way they treat their staff.
For more guidance or for details of our workshops for line managers contact Jane or Sophie at firstname.lastname@example.org