Whistleblowing and activism at work

Firstly, employers need to be aware of when issues raised by employees may amount to a protected disclosure – known as whistleblowing, and to be equipped to deal with such disclosures well. By way of summary, a protected disclosure is:

• a disclosure of information – mere allegations will not suffice, actual information has to be conveyed
• to a relevant person – this includes the worker’s employer but also, in certain circumstances, regulators and other prescribed persons such as HMRC, the Information Commissioner and the Environment Agency
• which, in the worker’s reasonable belief (note that it does not have to be true):
  • tends to show that one of the following categories of wrongdoing has taken place, is taking place or is likely to take place:
    • criminal offence;
    • failure to comply with a legal obligation;
    • miscarriage of justice;
    • danger to the health and safety of any individual;
    • environmental damage; or
    • deliberate concealment of any the above matters,
  • and is in the public interest – this will generally exclude grievances personal to the worker e.g. about their working conditions, pay and terms etc. Note that the matter need not affect the public as a whole, a section of the public will suffice: in Chesterton v Nurmohamed, there was a dispute about the calculation of commission payments and the Court of Appeal held that around 100 employees in the same position as the Claimant sufficed, taking into account the other facts of the case.

Employers should not see whistleblowers as “trouble-makers”, but should encourage an open culture in which potential issues are raised and resolved early. Not only will this enable employers to identify and correct any problems before they escalate or become entrenched (potentially avoiding or minimising any compliance or reputational issues), but an open culture will foster staff engagement and assist with staff retention. This will involve having a written whistleblowing policy that is kept up to date and readily available to staff, training managers and HR staff so that they are able to identify protected disclosures and take appropriate action, acting promptly to investigate disclosures made, and ensuring that whistleblowers are protected from any negative repercussions.

Employee activism

However, most “employee activism” will not amount to whistleblowing (although with increasing climate change activism, we may start to see more whistleblowing claims relating to “environmental damage”).

With the rise of social media, employee activism outside the workplace can also impact on the employee-employer relationship. Employers should be wary of leaping to dismissal on the grounds that an employee’s actions outside the workplace have brought the employer into disrepute, particularly where the employee has not identified their employer and they are not in a political role.

Read the article in full here, or contact our employment lawyers for specialist legal advice on activism or whistleblowing at work.