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Recent revelations about the NHS and even the Care Quality Commission itself, will do little to reassure those who fear their employer is guilty of wrong-doing.
The Enterprise and Regulatory Reform Act 2013 (in force from June) goes a little way towards further protecting workers rights to “blow the whistle”.
The original Public Interest Disclosure Act 1998 is the principal legislation that protects workers from dismissal or detriment for disclosing activities that their employer might be perpetrating, where those activities are against the public interest. These activities include criminal activities, failure to comply with legal obligations, health and safety risks, damage to the environment and a few others.
There are specific requirements about how workers can disclose such wrong-doing and employers are wise to adopt and publish (to their workers) procedures that workers need to follow. Having a policy gives the opportunity for an employer to deal with sensitive matters first. There could be misunderstandings about what is happening, or has really happened, for example. It may be that in some circumstances the employer can put matters right without the need for a public disclosure.
Even where disclosure is appropriate, workers should be aware of the need to take their complaint to a “prescribed person” such as the Health and Safety Executive or the Care Quality Commission. Many workers may incorrectly think that blowing the whistle means going to the press. Employers would be wise to make clear that workers are not necessarily protected if they do so.
Only if they follow the legislation need “whistle-blowers” be protected. If they do not then you may indeed be able to dismiss them for breach of contract. However, following the 2013 Act, disclosures are now protected disclosures if “in the reasonable belief of the worker” the disclosure is made in the public interest. Disclosures still need to be made in the appropriate manner but what it is reasonable for the worker to believe must be open to some speculation!
The 2013 Act provides further protection for the whistle-blower in that they will now also be protected from adverse treatment by colleagues. In practice, it will effectively fall on the employer to ensure that it does not happen and to take the consequences (perhaps a constructive dismissal claim or damages) if it does.
The charity ‘Public Concern at Work’ will advise workers about proper procedures and processes. It is in the interests of all: the worker; the employer; and the public at large, that would-be whistleblowers seek advice first.
Malcolm Martin - QCS Expert Contributor on HR
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