Recent reforms to employment law and the employment tribunal rules, including an increase in the level of service necessary to obtain protection against unfair dismissal (two years) and the introduction of ET fees, have reduced the number of ET claims being raised. However, another consequence of the reforms is that disgruntled workers focus on high-value claims, which do not require qualifying service, such as whistleblowing detriment/dismissal.
Protection for whistleblowers was first introduced in 1998 (the statutory provisions were amended in June 2013). The protection provided is two-fold. Firstly, the dismissal of an employee is automatically unfair if the reason for the dismissal is that the employee made a ‘protected disclosure’. Secondly, workers who have made a protected disclosure are protected against detriment (being disadvantaged) as a result of that disclosure.
Significantly for employers there is no qualifying period of service for whistleblowing claims and detriment claims can be brought during employment. In addition, there is no cap on the level of compensation for successful whistleblowing claims. Furthermore, whistleblowing continues to garner public interest and press coverage, as seen by the press surrounding dentist Desmond D’Mello who was secretly filmed by a whistleblower breaching health and safety procedures, amongst other things.
As a result, employers operating in the healthcare sector, such as dental practices, must be mindful of the risks of whistleblowing litigation given the nature of the services they provide.
Protection for whistleblowers
Whistleblowers only qualify for legal protection, however, if they make ‘protected disclosures’. A protected disclosure must first be a ‘qualifying disclosure’; specifically a disclosure of information which in the reasonable belief of the worker is in the public interest and shows one or more of the following relevant failures has occurred, is occurring, or is likely to occur:
- a criminal offence;
- a breach of any legal obligation;
- a miscarriage of justice;
- danger to the health and safety of an individual;
- damage to the environment; and/or
- information showing any of the above is being/has been/is likely to be deliberately concealed.
A qualifying disclosure must also be made to an appropriate person. Whilst most disclosures will be made to the employer, disclosures may also be made to: a legal adviser; a minister of the crown; and prescribed persons (such as the CQC) depending on the circumstances. Wider external (public) disclosures may also attract legal protection but more stringent rules apply to them, including the need for the disclosure to be made in good faith and in the reasonable belief the information disclosed is true and not for personal gain.
Therefore, if a worker makes a qualifying disclosure to an appropriate person (most likely the employer) this will be a protected disclosure and s/he will be protected against detriment/dismissal as a result of having done so.
Since June 25, 2013, whistleblowing detriment claims can be brought against fellow workers, as well as the employer and employers can also be held vicariously liable for such detrimental acts.
Handling whistleblowing
Whistleblowing litigation can be complex, divert time away from valuable work and necessitate legal advice, as well as having the potential to cause significant reputational damage. Therefore, employers (especially healthcare providers) must be prepared for, and able to handle, whistleblowing disclosures and the staff making them effectively and fairly, to ensure that concerns/failures can be rectified and minimise the risk of grievances/claims being made.
Given the implications it is prudent to implement a whistleblowing policy setting out in clear terms the obligations on staff and the organisation. Introducing a policy not only demonstrates the seriousness with which the organisation treats the identification and rectification of failures/bad practice, (which should create a culture of openness and confidence) but it also provides a clear framework for resolving issues internally, thereby avoiding external disclosures which can be damaging to the businesses’ reputation.
Whistleblowing policy
Effective policies should as a minimum:
- be drafted in simple easy to follow terms;
- encourage openness and inspire confidence in staff to raise concerns sooner rather than later;
- encourage whistleblowers not to make anonymous disclosures, which can be difficult to investigate and advise that a whistleblower’s identity will be kept confidential by the employer unless this would be in breach of a legal obligation (whistleblowers need to be aware though that even if their identity is kept confidential they could still be identified by colleagues/third parties);
- be clear on the scope of the policy (it is primarily intended to cover concerns about relevant failures [as detailed in the six bullet points above]) and cross-refer to other relevant policies which may be applicable (the grievance policy/codes of conduct);
- provide a point of contact for whistleblowing concerns who can also give guidance to staff on the applicability of the policy to the issue being raised;
- confirm the process for investigating concerns and for providing feedback to the whistleblower at the end of the investigation;
- acknowledge that whilst it is envisaged most concerns will be raised internally from time to time disclosures may need to be made externally (to the CQC);
- explain that the victimisation of workers making disclosures will not be tolerated and will be treated as a disciplinary offence; and
- make it clear that a disclosure made maliciously will be treated as a disciplinary matter.
Conclusion
Whilst dental practices are at risk of receiving whistleblowing claims, that risk must be balanced against the need to operate openly/transparently and from April 2015, in compliance with the duty of candour. A simple/clear policy, which encourages staff to raise genuine concerns about failures/breaches early and confirms that the victimisation of staff for doing so will not be tolerated, sets the right tone. It should also allow for the effective handling of concerns thereby addressing serious issues and preventing them from being repeated, which is vitally important for the continuing operation of the practice.
In terms of managing whistleblowers after a protected disclosure has been made, employers should not be afraid to take necessary action (in respect of a whistleblower’s performance/conduct). However, such action should be managed carefully and in line with relevant procedures; the steps/decision-making should be recorded to demonstrate there is no connection to the protected disclosure.