Protection for whistleblowers

If one of your employees reports you to a higher authority for being in breach of a legal obligation, they come under the protection of the law - so tread carefully before taking any action against them, warns solicitor Katee Dias.

THE PROBLEM

My commis chef has been complaining about the state of our kitchen for some time. Last week he made a formal complaint to the Food Standards Agency (FSA) and I am now being investigated. Can I sack this trouble-maker?

THE LAW

Your commis chef's actions have effectively been to "blow the whistle" on your alleged bad food hygiene practices. A person is classified as a whistleblower if:

• They have made a "qualifying disclosure" - namely, they have disclosed information which, in the reasonable belief of the person making that disclosure, shows that malpractice has taken place regarding either a criminal offence, a breach of any legal obligation, a miscarriage of justice, a danger to the health and safety of any individual, or damage to the environment; and
• They have made a "protected disclosure" - namely, they have disclosed the information to an appropriate person, which includes their employer, legal advisers, Government ministers and persons who are listed in the Public Interest Disclosure (Prescribed Persons) Order 1999.

A whistleblower is protected in that workers have the right not to be subjected to any detriment on the grounds that they have made a disclosure; and employees have the right not to be dismissed if the reason, or principal reason, for the dismissal is because they have made a disclosure.

EXPERT ADVICE

First, your commis chef has made a qualifying and protected disclosure about your food standards (being an alleged breach of your legal obligations and/or a danger to the health and safety of your customers) to you (ie, his employer). He has subsequently made a disclosure to the FSA, which is listed in the Public Interest Disclosure (Prescribed Persons) Order 1999 for the purposes of disclosures concerning matters that may affect public health and consumer interests in relation to food. It therefore appears that your commis chef has satisfied the requirements of the whistleblowing regime and is consequently protected from being subject to any detriment, as well as having the right not to be dismissed because of his disclosure.

It seems that the reason that you have for wanting to terminate your commis chef's employment is because he has made a report to the FSA alleging that you have failed to meet the necessary food hygiene standards. To dismiss him could, therefore, lead to a finding of automatic unfair dismissal by an employment tribunal.

CHECK LIST

• In summary, for a person to benefit from whistleblowing protection, they must make a disclosure which, in their reasonable belief, shows malpractice; make the disclosure in good faith, ie, by acting with honest motives; and make the disclosure to an appropriate person.
• Remember that the whistleblowing provisions extend to workers, not just employees. This means that casual workers and agency workers may also be protected.
• Whistleblowing protection exists even where the person is mistaken in their belief. All that is required is that their belief was reasonable and their disclosure was made in good faith.
• An employee is able to bring a claim for unfair dismissal as a result of whistleblowing, even where they have less than one year's service (which is the usual length of service that an employee must have in order to bring a claim for unfair dismissal).
• Employers should consider having a "whistleblowing policy" in place to minimise the risk of acting in breach of the whistleblowing regime. Such a policy should outline the reporting structure for employees to disclose any malpractice and emphasise the employer's commitment to remedying such malpractice.

BEWARE!

Compensation in an unfair dismissal claim is usually capped at the rate prescribed by the Government each year, currently £76,700. However, it should be noted that compensation arising from a dismissal relating to whistleblowing is uncapped.

CONTACT

Katee Dias, Goodman Derrick
Tel: 020 7404 0606
E-mail:kdias@gdlaw.co.uk