Issue 6

WHISTLEBLOWING - PREVENTION BETTER THAN THE CURE

By Andrew McConnell, Associate - Employment Team, Brodies LLP

The issue of whistleblowing is once again in the news, following reports that at least 52 NHS staff have been gagged since 2008 at a cost of up to £500,000 for each individual.

While reports of taxpayers' money being used to suppress failings in the National Health Service may make for arresting headlines, employers cannot actually 'gag' employees or ex-employees from speaking out about workplace malpractice. Even if an individual agrees to sign up to a confidentiality clause as part of a compromise agreement ending the employment relationship this does not prevent them from being able to blow the whistle. Nevertheless, in practice it is very unlikely that an individual would comment on the issue further as they would be concerned that their employer might attempt to claw back the package paid to them for the termination of their employment or in settlement of their potential whistleblowing claim.

employers cannot actually 'gag' employees or ex-employees from speaking out about workplace malpractice

This suspicion is perhaps reinforced by a recent poll of over 8,000 members of the Royal College of Nursing, 44% of whom said that fear of reprisal or victimisation would make them think twice about voicing concerns. This raises questions as to whether more can be done in terms of the law, or by employers in practice, to encourage responsible reporting of workplace issues and to put an end to the practice of large payments being made to employees in return for their silence.

Back to basics

'Whistleblowing' is the term used to describe the disclosure of information by an employee about malpractice that is occurring within their organisation. The law gives whistleblowers a certain amount of legal protection, provided their disclosure meets the definition of a 'protected disclosure' under the Public Interest Disclosure Act 1998 ("PIDA"). The law is about to change in this area. From 25 June, broadly speaking, a disclosure will meet this definition if it:

•    Actually does disclose information (rather than, for example, merely threatening to);
•    Is made to an appropriate person (this will usually mean the employer);
•    Is made, in the reasonable belief of the person making the complaint, in the public interest.
•    Suggests that one of the following six types of malpractice has taken place, is taking place or is likely to take place. These are:

•    Criminal offences
•    Breach of any legal obligation
•    Miscarriages of justice
•    Danger to the health and safety of any individual
•    Damage to the environment
•    The deliberate concealing of information about any of the above.

 The current requirement that disclosures have to be made in 'good faith' will be removed as the law changes on 25 June.

law gives whistleblowers a certain amount of legal protection, provided their disclosure meets the definition of a 'protected disclosure'

Some commentators are concerned that the removal of this step could open up the system to a greater potential of abuse by employees who have ulterior motives – perhaps seeing it as a way of 'getting back' at their line manager.

Can more be done?

Legislation aside, the groundswell of public and political opinion is, quite rightly, more focused on identifying workplace malpractice itself, no matter whether the motives for this identification are virtuous or not. This is particularly the case in the public sector, where members of the public are more likely to be put at risk by dubious practices. The government has responded by removing the good faith requirement and, in my view, realistically the law is unlikely to be able to go much further than that. But can more be done by employers to encourage employees to feel less fearful about raising concerns?

can more be done by employers to encourage employees to feel less fearful about raising concerns?

The answer is yes and no. Employees will always feel some discomfort about reporting issues, especially where their immediate boss is involved and it is unlikely that anything could be done to eradicate these concerns. The key to improving employees' confidence in reporting malpractice is threefold. Firstly, employees must be made aware of the workplace policies and procedures that are in place to protect them should they feel they need to raise such an issue. It should be made clear that victimisation of a whistleblower will lead to disciplinary action. Secondly, line managers need to be properly trained on the application of these policies. Thirdly, the policies must be applied as consistently as possible. It may seem trite, but there is very little point in having policies in place if employees either aren't fully aware of them or don't have confidence in their application.

The theme of creating greater transparency in public sector bodies is not going to go away and we can expect to see more stories emerge concerning the amount of money being paid to 'gag' whistleblowers. What is important is that more is done to resolve these issues before they reach tipping point. Giving staff the confidence to report malpractice early is vital – it is clearly of benefit to all concerned to get issues out in the open early before they escalate and cause more challenging situations for employers and employees alike.


Andrew McConnell is an associate in the employment team of Brodies LLP. For more information contact Andrew on 0131-656 0031 or at andrew.mcconnell@brodies.com

This article was first published in the Municipal Journal

By Andrew McConnell, Associate - Employment Team, Brodies LLP

Issue 6

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