Blowing the whistle: Just who is ‘Joe Public’?
Most people are familiar with the concept of blowing the whistle. It is also widely understood that should an employee (or worker) tell their employer that there are unsafe or illegal practices taking place within their business, then they are protected from suffering detrimental treatment or being dismissed as a result.
The whistle-blowing culture appears to be on the rise of late in the wake of several financial scandals such as LIBOR, the tax avoidance measures of HSBC clients, and in the medical sector with the Stafford Hospital Scandal. The financial services sector already has well-established procedures in place to deal with such reports, but the Financial Conduct Authority and Prudential Regulation Authority (PRA) have introduced new rules to encourage and embed good practice. Employers who are deposit takers, PRA – designated investment firms and insurers will as of next year be required to comply with a package of measures, including establishing internal whistle-blowing channels and inform staff about the arrangements, and designating a senior manager as whistle-blowing champion.
Law changes in 2013
The law on public interest disclosures (as they are officially known) was changed in June 2013 to remove the requirement that a disclosure should be made in good faith. Previously, if an employee was motivated to blow the whistle by malice or a desire for personal gain, then their disclosure would not be protected and they would not succeed in their claim to the Employment Tribunal.
Although it no longer matters what motivates a whistle blower, they still have to clear the hurdle of the ‘public interest’ test, which replaced the good faith requirement. In order for their disclosure to be protected, the employee must reasonably believe that their disclosure is in the public interest. Although ‘public’ does not mean the general public as a whole, and may refer to a relatively small group such as other employees.
Public interest and the Wincanton case
The meaning of ‘public interest’ has received attention in the Employment Appeal Tribunal recently in the case of Underwood v Wincanton plc UKEAT/0163/15. In this case the EAT held that a dispute between an employee and their employer relating to their terms and conditions of employment was capable of amounting to a protected disclosure, as that dispute is capable of being in the public interest.
The complaint in the Wincanton case contained a suggestion that those drivers who were particularly fastidious about road safety checks on their vehicles were denied the opportunity of working overtime. As three other employees were involved in making the complaint, this group could amount to ‘the public’ for the purposes of the public interest test.
It is a preliminary decision as the case has been remitted to the original tribunal, but it does appear at this stage to represent a possible return to the pre-June 2013 days when the whistle-blowing legislation could be used to bring a claim in circumstances such as this, where the protected disclosure related to a breach of a legal obligation, that legal obligation being a term of the employees’ contract. That possibility was introduced by the decision in Parkins v Sodexho Ltd  IRLR 109, where the claimant was able to successfully claim that a complaint about his employer’s breaches of his contract of employment amounted to a protected disclosure.
The public interest test
The Enterprise and Regulatory Reform Act 2013 amended s.43B of the Employment Rights Act 1996 and introduced the public interest test. As parliament did not take the opportunity to automatically exclude breach of a worker’s terms and conditions from the ambit of the protection, this decision may mean that they will be required to make this amendment in the future.
Blowing the whistle; a treat or an opportunity?
Whistle-blowers represent both a threat to and an opportunity for employers. The threat posed by the release of information about irregular accounting practices, breaches of health and safety and the like can expose an employer to criminal and regulatory sanctions and do irreparable harm to their reputation. Knowing about this before it escapes the inner sanctum can turn that threat into an opportunity to put things in order and prevent harm. Because of this, it is advisable to have a written policy in place to manage the risk. Having a written policy will reassure employees that their employer is committed to listening to their concerns, and that should in turn minimise the risk of them blowing the whistle outside of the organisation. Having a policy in place also means that if any disclosures are made, they are less likely to be protected if the employee did not follow them first, helping to minimise the risk of a successful Employment Tribunal claim.
In the meantime, employers should be careful to assess whether any grievance has any possibility of amounting to a protected disclosure and keep careful records of the reasons for any dismissal. In addition they should ensure that their whistle-blowing policy is up to date and that all staff are aware of how to report any concerns.
If you have a question about any of the issues raised in this article, or want to discuss a potential protected disclosure, please contact Julia Furley on 020 7388 1658, or email her at firstname.lastname@example.org.
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Adele Edwin-Lamerton, Solicitor