FAQ for Employers

What happens when a worker who is in the process of being performance managed or being disciplined says they want to whistleblow part way into the process?

Whistleblowing, the act of reporting a concern about risks, danger or wrongdoing at work, involves a disclosure of information in the public interest.

How we respond to a concern raised during other procedures should be to give it the same consideration as to one which comes in where there is no additional process.

In cases like these, check out whether the staff member has raised their concerns previously, before the performance or disciplinary process started. But remember one of the golden rules of handling whistleblows – focus on the information disclosed, not on the individual who is making the disclosure. If the disclosure is about a risk, danger or serious wrongdoing in the organisation, can you afford to take the risk of allowing that behaviour to continue? Probably not! In which case, an investigation which is proportionate to the seriousness of the allegation is the safest way to proceed.

What you decide to do will depend on the circumstances. Firstly, are the conduct or performance issues in any way related to substance of the concerns that have been raised – could the matter of concern have directly led to the poor performance or bad behaviour? If so, then it may be worth pressing the pause button on the conduct or performance procedures whilst the whistleblow investigation takes place.

Alternatively, it may be that you end up running the whistleblow investigation parallel with the disciplinary or performance management process. The acid test is – is the disclosure about something that is in the public interest. Has it a wider impact beyond a personal employment issure? Is it about something that needs to be brought out into the open and examined, for the public good?  This is the hallmark of the true whistleblowing concern. As a general rule, try to separate the whistleblow from the employment dispute and be sure not to lose sight of the concern.

If the disclosure turns out to be malicious – that is, the person knows the allegation is entirely fictitious and untrue – this in itself could be a disciplinary offence. But it’s a bad idea to penalise someone who genuinely believes what they are saying is true, even if they are mistaken. If you do that, you risk stories of how badly treated whistleblowers are circulating throughout the organisation for years to come and it may deter people from whistleblowing in the future.

One of your staff’s performance drops. You find out that she feels she is being bullied or harassed by other members of the team because she blew

Unless an employer has taken reasonable steps to prevent bullying or harassment of whistleblowers by co-workers, it may be deemed liable at an Employment Tribunal for the acts of its staff under the principle of vicarious liability. This means that it is no longer enough for managers to deal with incidents of bullying or harassment as and when they arise, on a case by case basis, but they will need to take proactive steps to prevent such behaviour. Having a clear whistleblowing policy is a vital first step, but it is just as important to ensure the communication of the policy and offering any necessary staff training. It will also be important to take appropriate action if any workers are found to be treating whistleblowers badly. Proactive management to build/rebuild working relationships/teams after a concern has been raised (whistle has been blown) is recommended, with appropriate support and advice from HR, Trade Unions etc. It is always best to anticipate repercussions or reprisals, to check regularly with the whistleblower to see how they are faring and to take action to nip these types of behaviour in the bud.

What happens if someone who raised a concern in the past has recently started performing poorly themselves. Is it okay to use formal procedures to manage this?

It is important to be clear that the whistleblow is completely separated out from the performance management issue. It would be worth finding out if the poor performance is any way related to the whistleblow (which can lead to staff feeling isolated and stressed). Given the way in which the whistleblowing legislation works, it will always important for employers to ensure they have documented reasons for any potentially detrimental treatment (such as discipline or capability procedures), as this may be needed later on as evidence that employee’s whistleblowing did not influence the treatment they received.

Under the Employment Rights Act 1996, an employee cannot be subjected to bad treatment by an employer for blowing the whistle (making a protected disclosure) and if an employee is subjected to detrimental treatment, the onus will be on the employer to show it is not due to the whistleblowing. In the case Ahmed v City of Bradford Metropolitan District Council, it was established that the correct legal test for assessing whether an employee has suffered detrimental treatment for whistleblowing is whether the disclosure (whistleblow) had a “material influence” rather than a trivial influence on the treatment given to the whistleblower. But under the unfair dismissal legislation, for a dismissal to be found to be automatically unfair, the whistleblowing must be the main reason, not just one of the reasons, for the dismissal.