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Whistleblowing: Time for Change

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By Patrick Stewart

A whistleblowing charity, Public Concern at Work (PCaW) has released a review which has revealed the following findings:

  • Four out of five ‘whistleblowers’ experience negative final outcomes and only 12% of whistleblowing claims brought in 2011 to 2013 were successful.

  • Seeking advice at an early stage is the most effective action a whistle-blower can take - in fact positive outcomes doubled. The review revealed however that only 30% of workers seek advice before blowing the whistle.

  • There has been a continuous drop in the number of individuals who say they would raise a concern about serious malpractice.

  • There has been a sharp increase in the total costs awards against claimants which will no doubt discourage workers from bringing claims.

  • The charity have received 17% more calls since 2011.

Whistleblowing refers to the act of reporting or exposing, internally or externally such as to the press, a suspected wrongdoing. The wrongdoing can be of any form including discrimination, a health and safety issue or criminal activity. A worker can blow the whistle in a private company and in the public sector.

Whistleblowing has been prominent in the news of late. A heart surgeon was recently vindicated after a long battle with the NHS over a disclosure about patient safety in hospitals. Dr Mattu was dismissed after he exposed the fact that two patients had died in dangerously overcrowded bays; he brought a whistleblowing claim against the NHS and after a long battle was successful.  Additionally, a whistleblowing claim involving fiscal fraud is currently moving through the Appeal Tribunal. In this case, Mr Nurmohamed worked for the estate agency Chestertons. He brought a whistleblowing claim alleging that the agency was deliberately fiddling the accounts so that he and his fellow managers would be deprived of their full commission and bonus entitlement. These two contemporary whistleblowing claims illustrate that whistleblowing can arise across different types of employment.

Whistleblowing legislation contained in the Employment Rights Act (“ERA”) and the Public Interest Disclosure Act protects employees from being dismissed or subjected to detriment because they have made a protected disclosure (any report of wrongdoing which comes under the definition in the ERA).

Despite this protection, PCaW’s findings suggest that whilst more people are observing issues at work, a decreasing amount are willing to make a report. This could be because workers are unaware of the protection created by legislation or they don’t trust that they will be able to successfully bring a claim should their employer not deal with their disclosure in a proper manner. Employers should include a Whistleblowing Policy in their Employee Handbook which informs employees about their rights as a whistleblower. The CEO of PCaW has said, “We must ensure workers are confident they will be encouraged and protected when they speak up. The power and responsibility to do this first rests with employers.”

In addition, the report has shown that most whistle-blower’s claims are unsuccessful and a significant reason it seems is the failure to take advice at an early stage. Whistleblowing claims can often be complicated both from an evidential and legal perspective. They involve investigation, often sector specific and claims can straddle different areas of law depending on the alleged misconduct. It is therefore important that workers take advice at an early stage.

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