If someone working for you has raised a concern that falls under whistleblowing protection (see here for what qualifies as whistleblowing) then they have certain legal protections you need to be aware of, as follows:
Who is protected?
Much of the protection involved in employment law is relevant only to employees, but in this case it applies to workers, and in the context of whistleblowing that can include not only those directly employed, but anyone else who works for the organisation in another capacity, such as agency temps, freelancers, contractors and casuals.
Unfair dismissal protection
If an employee or worker feels they have been unfairly dismissed by their employer after blowing the whistle, they are entitled to raise a claim to the employment tribunal up to three months after their dismissal. In whistleblowing cases, the normal requirement of two years’ service to bring a claim is not applicable.
It’s important to note an unfair dismissal claim could either be because they have been directly dismissed, but could also be if they feel they have no option but to resign because of how they were treated as a result of their whistleblowing, and subsequently bring a claim of constructive dismissal.
Protection from detriment
As well as protection from dismissal, workers are also protected against any other kind of detriment they are subjected to because they made a protected disclosure.
Examples of a “detriment” could be:
- not being considered for a promotion.
- being demoted, or having some of their duties taken away.
- being excluded from certain opportunities at work.
- being bullied or harassed.
It is important to note that you can be held vicariously liable for any acts of victimisation or detrimental treatment committed by other workers therefore any steps that you have taken to avoid this treatment should be noted centrally.
Future disciplinary action or performance management
A worker doesn’t have the right to avoid genuine disciplinary proceedings or other reasonable management actions such as formal performance or absence management procedures. If the worker underperforms after the disclosure has been made or commits misconduct unrelated to whistleblowing, you can take them down the normal disciplinary or performance management route. You should ensure you can clearly demonstrate objective reasons for any formal processes to avoid any potential claim that a decision to take action was related to the whistleblowing.
If you would like more information and/or advice about whistleblowing, please get in touch.