We all see things at work that make us think, “Maybe that’s not the best way to do things.” However, it’s quite a leap from that point to becoming a full-on whistle-blower. When things go past the ‘that’s not right’ stage and verge on the illegal, immoral, or just downright inept, then who steps up to draw attention to the situation?
The term ‘whistle-blower’ has always had, rightly or wrongly, somewhat negative connotations. A whistle-blower might have a personal agenda or an axe to grind. They may be deliberately trying to sabotage a company or an individual, or they may just revel in causing trouble. That was for many years, the public opinion of a whistle-blower, primarily because those who felt compelled to speak out often did so behind a cloak of anonymity. This was mainly because they feared for their future, their job, or even, in some extreme cases, their own personal wellbeing.
Today, we have a much more positive view of whistle-blowers. They’re seen as people who are brave enough to speak out against corruption, wrong-doing, or unacceptable working conditions and practices. They have become heroes, rather than pariah so, if you’ve reached your limit and need to speak out, who do you talk to?
If you see something at work that could be affecting others (including the general public) and decide to speak out, then you’re technically a whistle-blower. You could see signs of malpractice, financial discrepancies, or even dangerous working conditions that could potentially put people’s lives at risk.
Whistle-blowers are protected by an Act known as The Public Interest Disclosure Act (PIDA), which means it is against the law for anyone to be treated unfairly or dismissed because they have raised concerns about workplace practices.
The law gives protection to those who expose serious issues within the workplace, whether that’s financial impropriety or working conditions that are dangerous. So no, you should certainly not be concerned about losing your job because you’ve chosen to speak out. If you’re a worker – for example an employee in the NHS, a police officer or office worker - then your job security is protected by law, even if you do decide to go public with your concerns.
Trainees and interns are also protected, as are agency workers.
A ‘gagging clause’, or confidentiality clause as it’s more commonly referred to, is an agreement either within a contract of employment or drawn up separately between an employer and an employee, that prevents the employee from disclosing information about the company or people that they may work with. When these clauses are part of a compromise/settlement agreement they may be accompanied by an offer of payment that is separate from the usual reimbursement for services (a wage or fee). These separate payments are often suspiciously close to being regarded as a ‘pay off’ for staying silent.
Do not confuse these clauses with perfectly reasonable NDAs or Non-Disclosure Agreements, which are generally included from the outset within a contract, and cover such things as not disclosing to other potential rival companies the details of customers or clients.
Gagging clauses are unenforceable if they prevent a worker making a protected disclosure, so even if one has been signed, a whistle-blower can still go on to expose any wrongdoing as long as it’s in the public interest.
If your issue could be regarded as a personal grievance, rather than something that could affect others, then you may not be covered by any legislation that gives protection to whistle-blowers. If you do feel that the issue is more of a personal grievance, then you will need to report it using your employer’s existing grievance policies.
You can go directly to your employer either personally or anonymously, but this may not have any real effect. There may, however, be times when you cannot go to your employer, and feel so strongly that the perceived wrongdoing needs to be exposed quickly that you take it to an external source such as a journalist or media outlet. If you decide to go straight to the media without going to your employer first, then you may lose any legal protection you might otherwise have under the Public Interest Disclosure Act.
Alternatively, you can go to a ‘prescribed person’. Bear in mind that once you pass on the information to your employer or your prescribed person, you will not have any further influence on proceedings. You can find a list of prescribed persons as defined by the Department for Business, Energy, and Industrial Strategy here, but in brief, they include Ofcom, the Accounts Commission for Scotland, The Bank of England, HMRC, The Comptroller and Auditor General, the SFO, the FCA, and other bodies.
If you do not get the response you think your situation merits, then talk to a legal expert who will be able to help you. Alternatively, the whistle-blowing charity Protect will be able to support you with more advice and guidance.
To discuss any commercial and dispute resolution issue you may have you can contact Dianne Thomas on dthomas@berryandlamberts.co.uk
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
