Opinion:
The rise of Whistleblowing – what’s driving a surge in tribunal claims?

Recent headlines about organisations like the Post Office and Harrods offer encouragement to employees to speak up but also act as a warning to employers about the importance of managing whistleblower disclosures.

What is whistleblowing?

Whistleblowing is a critical mechanism for promoting transparency and accountability within organisations.  ‘Blowing the whistle’ or ‘whistleblowing’ isn’t the technical legal name, but is the term commonly used to refer to the act of an employee or worker making a ‘protected disclosure’ to an employer (or other prescribed person) about wrongdoing within an organisation.

For there to have been a protected disclosure, the employee or worker must have made a disclosure of information which they reasonably believe is in the public interest and which, in their reasonable belief, relates to one of six types of failure, wrongdoing or malpractice:

• A criminal offence;
• Breach of any legal obligation;
• Miscarriage of justice;
• Danger to the health and safety of any individual;
• Damage to the environment; or
• The deliberate concealing of information about any of the above.

What protections are afforded to employees and workers?

The Employment Rights Act 1996 (ERA) provides robust protections for employees and workers who make protected disclosures.  These protections are intended to encourage individuals to report wrongdoing without fear of retaliation.

Under the ERA, any dismissal (including constructive dismissal) of an employee, where the reason or principal reason for the dismissal was due to the employee making a protected disclosure, will be automatically unfair, allowing the employee to seek redress through the employment tribunals regardless of their length of service.  The same applies to selection for redundancy.

In addition, and significantly, whereas (until an expected law change next year) an employee generally needs two years’ service in order to bring a claim of unfair dismissal, a complaint of automatic unfair dismissal connected to whistleblowing does not have any service requirement, so is effectively a ‘day one’ right.

The ERA also protects both employees and workers against suffering a detriment on the grounds of having made a protected disclosure.  Detriment can include any unfavourable treatment, such as demotion, disciplinary action, or harassment.  Co-workers who subject a protected individual to a detriment can also be personally liable and an employer is vicariously liable for any such detrimental treatment where they did not take all reasonable preventative steps.

Employees who suffer a detriment or are unfairly dismissed due to whistleblowing may be entitled to uncapped compensation.  The amount of compensation is determined by the employment tribunal and can vary based on the particular circumstances of the case.

Why have whistleblowing claims increased?

Alongside big stories around the #MeToo movement and allegations of a toxic working environment at Harrods in recent years, some high-profile cases have also put a spotlight on whistleblowing cases making it a hot topic for legal and HR professionals, as well as the wider public, creating a “speak up” culture.  This has led to an increase in public awareness around an individual’s rights and a 92% increase in employment tribunal claims between 2015 and 2023, according to the Financial Times.

Landmark decisions in the cases of Osipov and Jhuti have made waves by introducing (i) personal liability for individual workers who can now be named as a respondent in a tribunal claim and be held personally liable for damages and (ii) the question of whether another person’s knowledge of a protected disclosure can be attributed to an innocent decision-maker who inadvertently subjects a whistleblower to a detriment.

Since 2013, disclosures no longer need to be made in good faith and it is therefore irrelevant why an individual makes a disclosure, so long as they reasonably believe that it is in the public interest.  Case law has established that what is ‘in the public interest’ for these purposes is quite a low bar, and ‘public’ does not necessarily mean something affecting ‘the public’ in a wider sense.  While ‘classic’ whistleblowing topics such as the dumping of toxic waste, or poor health and safety practices are clearly in the public interest, the definition extends to matters that might not immediately spring to mind as fitting in this category.  For example, complaints by an individual about their own poor working conditions, or their employer’s incorrect calculation under a bonus scheme, have been found to be capable of engaging whistleblower protection where multiple employees are affected.

This, coupled with the potential for uncapped compensation and the removal of the requirement for two years’ service to bring a claim, might leave the more cynical among us wondering if the increase in claims might be down to ulterior motives and opportunism but it is important to recognise that a culture of transparency and empowerment is a very positive thing.  After all, it is not only the company getting called out who risks reputational damage; we have seen time and time again that whistleblowers themselves can face huge personal sacrifices for the sake of bringing wrongdoing to light.

What’s planned for the future?

The Employment Rights Bill (ERB) is currently making its way through the House of Lords and seeks to further enhance remedies available to whistleblowers.  The proposed changes include increased compensation for whistleblowers who suffer retaliation, the introduction of interim relief measures to protect whistleblowers during the investigation process as well as adding sexual harassment as a new category of wrongdoing amounting to a protected disclosure.

To complement the protections for whistleblowers, the ERB will introduce clearer guidelines for employers, setting out their responsibilities when handling disclosures, internal reporting mechanisms to be put in place and the obligation to conduct thorough investigations.

Another feature of the ERB is the removal of the two year service requirement for bringing an unfair dismissal claim.  It will be interesting to see whether this has the effect of reducing the number of claims that look like ‘straightforward’ complaints about unfair dismissal, but have a complaint of whistleblowing (or discrimination) added because the employee doesn’t have two years’ service.

Further, a Private Members’ Bill introduced by Gareth Snell MP is currently making its way through the House of Commons and seeks to establish an Independent Office of the Whistleblower which would “set, monitor and enforce standards for the management of whistleblowing cases” as well as provide advice and order redress of detriment suffered by whistleblowers.

What can you do?

It is vital that organisations encourage a culture of trust and transparency and have comprehensive policies in place which set out the process for making a disclosure as well as the protections that will be afforded to any whistleblower who chooses to come forward.

In addition, staff training is crucial not only to ensure that employees know their rights but also that HR and managers know how to identify and respond to whistleblowing complaints fairly, consistently, and, of course, confidentially.