Essential safeguards: A guide to whistleblowing

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The MRS Standards team has continued to add to the essential safeguards series of guidance, with the aim of guiding our members in the prevention of harm, a key construct of the MRS code. The latest addition to the series covers whistleblowing.

What is whistleblowing?

Whistleblowing is the act of disclosing information about wrongdoing in the workplace. This could mean highlighting possible unlawful activities in an organisation, failures to comply with legal obligations, or miscarriages of justice, or reporting on risks to the health and safety of individuals or to the environment.

Such activities could be a violation of a law, rule or regulation, or a threat to public interest, such as fraud, health and safety violations, or corruption.

By ‘blowing the whistle’, individuals may highlight illegal activity in the workplace, and may protect others in future.

Whistleblowing and the law

The Public Interest Disclosure Act 1998 provides legal protection for individuals who disclose information to expose acts such as criminal acts. The equivalent legislation in Northern Ireland is the Public Interest Disclosure (Northern Ireland) Order 1998.

The legislation made substantial amendments to the Employment Rights Act 1996 – and the Employment Rights (NI) Order 1996 in Northern Ireland – to protect whistleblowers from dismissal and detrimental treatment by their employer. In some cases, workers may bring a case before an employment tribunal, which can award compensation.

As a result of the legislation, some employers have developed internal whistleblowing procedures, although the legislation does not enforce this. If you, or your employer, do not already have a whistleblowing policy in place, negotiate to create a policy that encourages workers to feel confident in raising concerns, and establish a fair investigative process.

What counts as whistleblowing?

As a whistleblower, you’re protected by law – you should not be treated unfairly or lose your job because you ‘blow the whistle’.

You can raise your concern at any time about an incident that happened in the past, is happening now, or you believe will happen in the near future.

You’re protected by law if you report any of the following:

• A criminal offence – for example, fraud
• Someone’s health and safety is in danger
• Risk or actual damage to the environment
• A miscarriage of justice
• A business is breaking the law – for example, does not have the right insurance, or is breaching Covid-19 rules on hygiene, face coverings, social distancing, and so on
• You believe someone is covering up wrongdoing.

Personal grievances (for example, bullying, harassment, discrimination) are not covered by whistleblowing law, unless a particular case is in the public interest. These cases should be reported via employers’ grievance policies.

Who to tell and what to expect

If you have a concern, you can tell your employer – they may have a whistleblowing policy that tells you what to expect if you report your concern to them. You can still report your concern to them if they do not have a policy.

There are other options if you do not want to report your concern to your employer – for example, you can get legal advice from a lawyer, or tell a prescribed person or body. On the Department for Business, Energy & Industrial Strategy (Beis) website, there is a list of the prescribed persons and bodies to whom you can make a disclosure, and a brief description about the matters you can report to each prescribed person.

If you decide to blow the whistle to a prescribed person or body, rather than to your employer, you must make sure that you’ve chosen the correct person or body for your issue.

Making your claim anonymously or confidentially

You can tell your employer or a prescribed person or body anonymously, but they may not be able to take the claim further if you have not provided all the information they need.

You can give your name but request confidentiality – the person or body you tell should make every effort to protect your identity.

If you report your concern to the media, in most cases you’ll lose your whistleblowing rights as defined by the Public Interest Disclosure legislation.

What your employer or a prescribed person will do

• Your employer or the prescribed person or body will listen to your concerns and decide if any action is needed.
• You may be asked for further information
• You must say straight away if you do not want anyone else to know it was you who raised the concern
• Your employer or the prescribed person or body can keep you informed about the action they’ve taken, but they cannot give you much detail if they have to keep the confidence of other people
• A prescribed person or body cannot help you with your relationship with your employer.

If you’re not satisfied with how your employer dealt with your concern

Tell someone else (for example, a more senior member of staff) or a prescribed person or body if you believe your concern was not taken seriously or the wrongdoing is still going on.

Alternatively, contact the Advisory, Conciliation and Arbitration Service (Acas), the whistleblowing charity Protect, or your trade union for more guidance.

Key facts

1. If you suspect unlawful activity at work, you may want to inform someone about it
2. Workers should only blow the whistle when they have sufficient hard evidence and they cannot use the usual grievance procedure
3. Workers are protected from detriment and unfair dismissal if they blow the whistle.

For disclosures to be protected by law, workers must make them to the right person, in the right way, and not for personal gain.

This information is being provided as part of the commitment by MRS to provide support and advice on safeguarding issues. Please note that the MRS guidance is provided for information; it is not legal advice and cannot be relied upon as such. MRS will not be liable for the content in this version or any decisions made, or action taken, in reliance on the information in this version. Compliance with this guidance document cannot confer immunity from legal obligations. Specific legal advice should be taken in relation to any specific legal problems or matters.

Information sources:

Acas
Citizens Advice
Protect
Beis

This article was first published in the April 2021 issue of Impact.