Whistle blowing and employment law specialist Chris Benson answers some commonly asked questions:
Q. Why doesn’t the law protect Whistle Blowers?
A. In theory the law should protect employees if they raise concerns about something the employer is doing that will harm patients. However the law does not cover every situation and the NHS is unfortunately not always receptive to whistle blowers
The law the ‘Public Interest Disclosure Act 1998’ (PIDA) aims to protect workers who disclose wrongdoing by their employers from being dismissed or subjected to a detriment at work. This protection, however, is only available in specific circumstances.
If a worker thinks they have suffered a detriment because of whistle blowing there are strict time limits. A claim in the employment tribunal must usually be lodged within three months less one day of the date that they suffered a detriment or were dismissed. If in doubt seek legal advice at the earliest opportunity.
Q. In what circumstances are employees protected?
Reasons for making a disclosure
To be protected as a whistle blower, a worker must be making a disclosure of information for a reason which they reasonably believe shows one or more of the following:
- that a criminal offence has been/is being/is likely to be committed;
- that a person has failed/is failing/is likely to fail to comply with a legal obligation;
- that a miscarriage of justice has occurred/is occurring/us likely to occur;
- that the health and safety of any individual has been/is being/is likely to be endangered;
- the environment has been/is being/is likely to be damaged; or
- that information relating to any of the above has been/is being/is likely to be deliberately concealed.
Even if the worker is wrong, they will be protected under the law as long as they were reasonably mistaken.
Who can a worker complain to if they have concerns about practices in the NHS?
To be protected as a whistle blower, a worker must follow the procedure for making a disclosure outlined in the legislation. Unless there is a good reasons the concerns should be raised with their employer first. This is something that many potential whistle blowers are concerned about as they would prefer to speak with an independent person.
If the worker reasonably believes that they will be subjected to a detriment by their employer if they make a disclosure, they maybe justified in making a disclosure to other individuals set out in the legislation including
- to a legal adviser in the course of obtaining legal advice;
- in good faith to a Government Minister; or
- they make a disclosure that they reasonably believe is substantially true, in good faith, to (as appropriate) the Health and Safety Executive, the Care Quality Commission or the Independent Regulator of NHS Foundation Trusts.
The disclosure must be made in good faith and not for the purposes of personal gain.
The worker must also reasonably believe that the information disclosed is substantially true and it must be reasonable, in all the circumstances, for the worker to make the disclosure.
A worker may also be protected if they make a disclosure to others (for example, to the media, MPs or police) if they have previously made a disclosure of substantially the same information to their employer.
Employers will often argue that the information disclosed was not disclosed to the correct person, was not made in good faith or that was not reasonable. Employers do not always accept that the whistle blower is protected by the law.
What remedies can I get if I have been victimised as a result of whistle blowing?
- If a worker is dismissed because they are a whistle blower their dismissal is automatically unfair and they can lodge a claim at an employment tribunal. If a worker wants to lodge a claim they must do so within three months less one day of the date that they were dismissed.
- If the case proceeds to a hearing at an employment tribunal and the worker is successful, there is no cap on the amount of compensation that can be awarded. In the compensation award, the employment tribunal can include an amount for injury to the worker’s feelings. The employment tribunal can also order the employer to reinstate/re-engage the worker. If the employer refuses, the employment tribunal cab order the employer to pay additional compensation to the whistle blower.
- It is also unlawful to subject a worker to a detriment (for example, overlooking them for promotion) because they are a whistle blower. If a worker is subjected to a detriment because of making a disclosure and wants to lodge a claim for compensation at an employment tribunal, they must do so three months less one day from the date that they were subjected to a detriment.
- If the case proceeds to a hearing and the worker is successful, the employment tribunal can award compensation for injury to the worker’s feelings. There is no cap on the amount of compensation that can be awarded.
- In some cases if a whistle blower has been suspended it maybe possible to challenge the suspension and force the employer to let the whistle blower back to work.
Q. How can I pay for my legal case?
Obtaining legal advice can be expensive, especially if you have lost your job and therefore have no regular income. We are happy to assess whether we can help you. There are then a number of funding options available, depending on your circumstances. Many people have legal expenses insurance that can be used to fund the legal advice. For more information click here for the Leigh Day & Co guide to paying for legal advice.
Q. Why don’t more staff raise concerns with the CQC
A. The CQC has failed to act in many cases and where they have inspected they rely on evidence provided by the employer. This is inadequate. Additionally, staff may be threatened with ‘bringing their employer into disrepute’ and dismissed on those grounds. Action may also be required in the employment tribunal.
Leigh Day & Co
The answers to the questions above does not constitute legal advice. The information and opinions expressed should not be relied on or used as a substitute for legal advice.
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Definitions of a whistle-blower
“a person who informs on someone engaged in an illicit activity” Source: Oxford dictionary
“a person who tells someone in authority about something illegal that is happening, especially in a government department or a company” Source: Cambridge Advanced Learner's Dictionary
Or to Blow the whistle:
“bring an illicit activity to an end by informing on (the person responsible)” Source: Oxford dictionary