What protection do workers have when raising health and safety issues in the workplace arising from the COVID-19 pandemic?
Protection for whistleblowers was introduced by the Public Interest Disclosure Act 1998. The law protects employees and workers from being dismissed or subjected to detriment because they have made a protected disclosure.
What is a protected disclosure?
There must be a disclosure of information that, in the reasonable belief of the worker, tends to show that one of following has occurred, is occurring, or is likely to occur:
A criminal offence
Breach of any legal obligation
Miscarriage 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
For disclosures made on or after 25 June 2013, the worker must also reasonably believe that the disclosure is “in the public interest”, but no longer needs to show that the disclosure was made in good faith.
Automatic Unfair dismissal
The dismissal of an employee (including constructive dismissal where an employee resigns in response to a breach) will be automatically unfair if the reason, or principal reason, is that they have made a protected disclosure. The same applies to selection for redundancy.
There is no qualifying minimum period of service required unlike an ordinary unfair dismissal claim where the employee needs to have a minimum of 2 years continuous service. Whistleblowing claims are not restricted by the usual upper limit on compensation unlike ordinary unfair dismissal claims. Whistleblowing claims can sometimes be used tactically for these reasons.
It is unlawful for an employer to subject a worker to a detriment. This could include, for example, threats, disciplinary action, loss of work or pay, or damage to career prospects on the grounds that they have made a protected disclosure.
However, this does not mean that a worker who has raised a concern under a whistleblowing policy cannot be managed (monitored, disciplined, dismissed) for reasons that are not connected to the disclosure made, but employers should make sure that these actions are justified and entirely unrelated to the worker’s disclosure.
It is important to remember that an employer can be held vicariously liable for any acts of victimisation or detrimental treatment committed by one of its employees, unless it can demonstrate that it took all reasonable steps to prevent this treatment.
Providing effective protection for whistleblowers is important for employers for several reasons including internal control of risk, avoiding unnecessary litigation, limiting reputation damage and protecting staff morale. It can also be important to avoid criminal liability including bribery.
Good practice for employers to reduce business risk
Implement a whistleblowing policy setting out procedures by which staff can confidentially report concerns about illegal, unethical or otherwise unacceptable conduct. Ensure that it enables the worker to bypass the level of management at which the problem may exist.
Publicise the policy internally and train management in its principles and application. Make it clear that victimisation of a whistleblower will lead to disciplinary action.
Investigate disclosures promptly, and keep the whistleblower informed as to the progress where possible. Silence or apparent inaction may lead the whistleblower to become suspicious and make a disclosure externally.
Do not rely on confidentiality clauses to prevent external disclosures, as they are unenforceable if the disclosure is protected. Taking action against a whistleblower for breach of confidence may amount to unlawful detriment which could result in an Employment Tribunal claim against the business.
The protection of whistleblowers is particularly important when looking at the health and safety of staff since the spread of COVID-19 including those returning to work following the easing of lockdown. It has been reported that a number of care workers have raised internal complaints and called a whistleblowing helpline since the start of the Covid-19 outbreak along with NHS staff raising issues including the lack of PPE equipment.
Employers must ensure that they treat any concerns raised by workers seriously and carry out an investigation and keep a clear record of events.
If you are a worker or employee and require advice, please contact Farleys’ employment law team on 0845 287 0939 or send your enquiry by email.