Whistleblowing - a timely reminder

04/01/2010

By Nick Hobden, Partner and Head of Employment.

Many people are aware that as a result of legislation brought into force about 10 years ago, employees are protected against unfair treatment at the hands of their employers in circumstances where they are found to have blown the whistle.

But despite the fact that a significant amount of time had gone by since this legislation came into force, there is still some uncertainty about which disclosures attract protection and which do not.

Cavendish Munro v Geduld

In the case of Cavendish Munro v Geduld, the Employment Appeal Tribunal ("EAT") recently held that in order to make a protected disclosure, it is necessary for an employee to do more than simply make a general allegation or express an unspecified concern. The employee must go further and disclose clear information about a particular set of facts. The EAT gave the hypothetical example of a worker in a hospital claiming that "The wards have not been cleaned for the past two weeks. Yesterday sharps were left lying around." Such a statement clearly makes a disclosure of information. Whereas saying "You are not complying with health and safety requirements" is an allegation and not a disclosure of information.

In Cavendish the relationship between the employee and his employer (of which he was a director and shareholder) became strained and negotiations began between them with a view to a possible buy-out of his shares. No agreement was reached and the employee's solicitor wrote a letter to Cavendish on his behalf which the employee claimed amounted to a protected disclosure regarding the failure of the other directors to comply with their legal obligations towards him. The EAT held that this did not amount to a protected disclosure as it did not disclose any facts and was simply a statement of the employee's position.

Although the employer successfully defended the employee's claim in this case, it serves as a reminder to employers to be aware that a wide variety of complaints made by employees may amount to a protected disclosure for the purposes of the whistleblowing legislation. Claims brought by workers who have made protected disclosures and believe that they have been subjected to any detriment or dismissal as a result can be extremely valuable.

The law - what you need to know

So, going back to basics, what is a protected disclosure? The answer is found in the whistleblowing legislation, which states that a protected disclosure is made where a worker has a reasonable belief that their disclosure tends to show one or more of the following has occurred or is likely to occur:

• a criminal offence
• the breach of a legal obligation
• a miscarriage of justice
• a danger to the health and safety of any individual
• damage to the environment
• deliberate covering up of information tending to show any of the above.

A breach of a legal obligation includes obligations owed to an employee under their contract of employment, such as the employer's obligation to maintain a relationship of trust and confidence. This is not immediately obvious from the general perception of what the whistleblowing legislation is about, namely encouraging employees to blow the whistle on malpractice by companies.

The legislation encourages internal disclosure (to the employer) as the primary method of whistleblowing. External disclosure is harder to justify and disclosures to the media will only be protected in very limited circumstances.

The fact that a protected disclosure does not have to state that it is such makes it difficult for employers to identify when a disclosure is being made. The Cavendish case limits the extent to which comments or complaints can amount to protected disclosures. However, many of the existing rules will not be affected by this decision. It remains the case that the employee does not need to specify exactly what legal obligations the employer is alleged to have breached. Nor does the worker have to prove that the disclosure is true. They must reasonably believe it to be true, but the disclosure can also be protected even if the belief turns out to be wrong.

Are you worried?

If you are at all unsure about how to handle a comment made by a worker that you believe might amount to a protected disclosure, please contact a member of the Employment team for further advice and support.