If you are considering whistleblowing at work and want to ensure you do it in a way which will give you protection under whistleblowing laws, we can help you.
We can also support you if you have whistleblown at work and suffered retaliation or have been dismissed as a result. We have been involved in several high profile whistleblowing cases for senior executives in financial services, insurance, professional services, the oil and gas industry, and for NHS or private sector medical consultants, click here for a recent example. We have solid experience of winning employment tribunal whistleblowing claims, informing government consultations to bring about changes in whistleblowing law, and are renowned for obtaining compensation and managing reputational issues on behalf of people who have alleged malpractice and had their careers blighted or destroyed.
When should I whistleblow?
You should raise your whistleblowing concerns as soon as possible on being a witness to, or becoming aware of any wrongdoing, risk or malpractice at work which you believe should be reported to your employer.
Do I have a legal obligation to whistleblow?
Whistleblowing law does not require you to whistleblow, however you may still be obliged to do so if you work under a professional code of conduct. This can include:
- Approved persons/Senior Managers to the Financial Conduct Authority or Prudential Regulatory Authority;
- Solicitors to the Solicitors Regulation Authority;
- Accountants to the Association of Chartered Certified Accountants;
- Doctors to the General Medical Council;
- Nurses under the Nursing Midwifery Regulations
Check your regulatory code of conduct.
Should I try to find evidence of my concern before whistleblowing at work?
No, it is not your responsibility to investigate your concerns; this should be done by your employer. Doing so, may cause a breakdown in your relationship with your employer, a breach of confidentiality or even lead to disciplinary proceedings. Some evidence to back up your concerns would be helpful to any subsequent investigation and to support your genuine belief in the concern you are raising.
In order to qualify for whistleblowing protection under whistleblowing law you only need to have a reasonable belief in the concern you are raising at the time you raise it.
Am I protected by whistleblowing law?
Almost all senior executives and workers are protected by whistleblowing laws including: CEOs; CFOs; Executive Directors; all employees and former employees; salaried partners; members of LLPs; and NHS consultants.
Workers specifically excluded are: members of the armed forces; intelligence officers; volunteers; and those who are genuinely self-employed.
I work in the UK but I am employed by a company based outside of the UK – do I qualify for whistleblowing protection?
Depending on your working arrangement, you may qualify for whistleblowing protection under UK whistleblowing law. You would typically need to show that the work you perform is partly in the UK, or has a close connection with the UK to be able to bring an employment tribunal whistleblowing claim.
If you work in financial services for a firm with a head office in the USA, we can assist you to report your whistleblowing concern to the Securities and Exchange Commission (‘SEC’).[Link to article – Developments in UK and US Whistleblowing Law]
Will any concern I raise be covered by whistleblowing law?
No, your disclosure must relate to wrongdoing that you reasonably believe is in the public interest. This is likely to be broadly interpreted but will often involve some kind of unlawful or criminal activity or risk.
Raising concerns which are of personal interest (for example, complaints of bullying or breaches of your contract) may not be protected. In these circumstances you can still raise a grievance about such issues.
To whom should I raise my whistleblowing concern?
A good starting point is to check if your employer has a whistleblowing policy as this will often provide guidance on how to report your concern and to whom the whistleblowing concern should be reported to in the first instance. If you experience detrimental treatment, the grievance or bullying/harassment policy may be the appropriate policy within which to raise those issues.
In most cases, whistleblowing disclosures should be made to your employer, however, if you feel unable to do so because you have a real fear of retaliation, or evidence being destroyed, or you have already reported the whistleblowing concern to your employer, you may report your concern directly to the relevant regulator (such as the FCA) or a “prescribed person” (such as HMRC, or your MP). If you report your concern to a “prescribed person” there is a higher burden on you to establish a belief in the truth of the allegations or information you are disclosing at the time you disclose it, so some evidence will be required.
Only in exceptional circumstances, should you report your concern directly to the press or disclose it more widely such as via social media. Disclosing the information in this way, without using your employer’s internal procedures may mean that you lose any whistleblowing protection provided under whistleblowing law and may also jeopardise your employment.
What should I say when I raise my whistleblowing concern?
For your own protection and to ensure that there is a record of your disclosure, it is better to raise the whistleblowing concern in writing, although you are still protected in law if you make an oral disclosure.
Be measured in your tone and language and try to convey as much factual information as possible rather than opinion. For example, ’the walls of the operating theatre have not been cleaned in 6 months’ would amount to a disclosure but ‘I believe that you are not complying with the Bank’s governance requirements’ would not be sufficient information to amount to a qualifying whistleblowing disclosure.
Can I whistleblow anonymously?
Whistleblowing at work can be done anonymously; some employers have anonymous helplines however, doing so will make it more difficult for your employer to investigate your concerns as it will be unable to ask you any follow up questions. Not disclosing your identity will also make it less likely for you to qualify for whistleblowing protection under whistleblowing laws.
If you are concerned about raising a concern openly, you may instead wish to consider raising the matter confidentially. This way, your employer will be aware of your identity but should seek your consent before disclosing it.
What protection do I have if I whistleblow?
Provided you disclose the information in the correct way, you will have whistleblowing protection from any detrimental treatment by your employer which arises as a result of you whistleblowing at work.
Whistleblowing protection can cover the following treatment:
- disciplinary action
- being overlooked for promotion
- unfairly receiving a poor performance review
- not receiving a bonus or benefits
- being excluded or isolated
If you are an employee and have been dismissed for whistleblowing at work, or you resign in response to detrimental treatment due to whistleblowing, you may have additional claims for whistleblowing unfair dismissal or whistleblowing constructive dismissal.
Does it matter if I whistleblow in bad faith?
If you whistleblow for a reason that is personally motivated, such as by reason of revenge on a colleague or to obtain a financial advantage, you may still be able to benefit from whistleblowing protection, however, any compensation you are awarded for bringing a successful employment tribunal whistleblowing claim is likely to be reduced by up to 25%.
If I have been dismissed and/or suffered a disadvantage, what can I do?
In this situation, you should initially raise your concerns about the treatment you have suffered with your employer. This should be done in the form of a written grievance under your employer’s grievance procedure or the ACAS Code of Conduct for Discipline and Grievance. Failure to do so may mean that any compensation you are awarded under whistleblowing law is reduced.
If your employer does not resolve your grievance satisfactorily, you may be able to bring an employment tribunal whistleblowing claim against both your employer and the employees who have caused you harm.
How long do I have to bring a whistleblowing claim?
You can make an application to the employment tribunal to get your job back, but you must do this within 7 days of being dismissed.
Otherwise, an application to conciliate an employment tribunal whistleblowing claim must be brought within three months of the date of your dismissal or the act or failure which you consider amounts to detrimental treatment.
If the act or failure is part of a series of similar acts or failures then you will have three months from the date of the last of occurrence. For example, if, after whistleblowing at work, you are gradually stripped of certain job responsibilities, the time limit could run from the date the latest job responsibility was taken away from you.
What is Early Conciliation and when do I need to do it?
An Early Conciliation Certificate is a requirement before you can lodge a whistleblowing claim at an Employment Tribunal. You will be required to contact ACAS on 0300 123 1100 to find out you when need to begin Early Conciliation and to obtain your certificate. Clickhere for more information.
What is interim relief?
In whistleblowing dismissal cases, if you have a very strong claim you may be able to claim ‘interim relief’ at the employment tribunal within 7 days of the date of termination of your employment and seek either re-instatement to your previous role, re-engagement to a different role with your employer or, a continuation of your employment contract, pay and benefits.
If this is something that you wish to explore, it is imperative that you seek advice quickly.
Will a notification be sent to the regulator when I make my claim?
When you submit your claim form you will be asked if you consent to the claim form being sent to the relevant regulator.
If you do select this option, employers may face a regulatory investigation as a result of this disclosure.
What compensation could I get if I win my whistleblowing claim?
You are entitled to claim uncapped compensation for the losses caused by the detrimental treatment but you will be under a duty to mitigate your losses by taking reasonable steps to find a new job. Your losses may include loss of salary, bonus, shares, options, benefits, pension and losses for the hurt, distress and any personal injury caused.
I have signed a settlement agreement with a “gagging clause” – does this prevent me from whistleblowing?
Even if you have signed a settlement agreement, you may still be able to whistleblow without forfeiting any payments or benefits you have received. Gagging clauses are void if they prevent an employee from making or repeating a genuine whistleblowing disclosure. However, you should seek employment advice rather than jeopardise your position.