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The Employment Tribunal recently found that a civil servant’s anonymous interview to BBC Newsnight constituted a qualifying public interest disclosure, reigniting the discussion about the boundaries of protection for whistleblowers.1
Managing the risk that a whistleblower ‘goes public’ with their concerns is a common feature in workplace investigations. It goes without saying that the fallout from any such public disclosure can be substantial, with significant legal, reputational and potentially financial consequences for an organisation.
However, workers that attempt to blow the whistle to the media or in a public forum will often face an uphill battle in any claim for protection, particularly if their employer has already taken their concerns seriously.
The legal framework around whistleblowing places significant value on workers initially raising their concerns directly to their employer via the proper internal channels. As such, whistleblowers who make disclosures to their employer face the least onerous requirements to establish that their disclosures are protected (i.e. that they should be shielded from dismissal or other forms of detriment as a result).
The further removed the recipient of the whistleblower’s information is from the employment relationship, the more hoops the whistleblower will have to jump through to be protected. While these are not insurmountable, the law is designed in a way that blowing the whistle to the media should be a last resort.
Consequently, a worker who attempts to blow the whistle to the media will be required to satisfy the most stringent conditions under the legislation: (i) they must reasonably believe that the information disclosed, and any allegation contained in it, is substantially true; (ii) they must not act for personal gain; (iii) the reason they make the disclosure externally must fall within one of three grounds; and (iv) in all the circumstances, it must be reasonable for them to make the disclosure in question. Separate considerations apply if the disclosure concerns an ‘exceptionally serious failure’.
Protection for this method of blowing the whistle will therefore only be available in limited circumstances. The rationale behind this has been put neatly by the EAT: ‘you do not go beyond the person who might immediately take action unless there are special circumstances..’. 2
The recent ET case of Stewart v FCDO is a helpful reminder of how ‘special circumstances’ might arise in practice.
The claimant made disclosures in an anonymous interview to the BBC criticising the UK government’s handling of the Afghanistan evacuation process and the risks of danger people in Kabul faced. Her account corroborated similar concerns that had previously been raised internally by a colleague, Mr Marshall, who had subsequently resigned. The claimant inferred that this was as a result of pressure to do so.
Mr Marshall’s concerns had been followed by firm denials by the then Prime Minister and then Foreign Secretary, who publicly refuted allegations about the evacuation that the claimant also believed to be true. The ET felt that it was reasonable for the claimant to expect an unfavourable reception too were she to make similar disclosures internally.
Concluding that it was “reasonable for her to go to the UK’s public service broadcaster when the relevant information and/or allegations had been already been put into the public domain (by Mr Marshall) and government ministers were publicly disputing them”, the claimant met the test required for protection.
Whistleblowers who make disclosures to the media will be subject to far greater scrutiny by a tribunal as regards the reasonableness of their behaviour.
An important aspect of that will be whether they chose to ignore their organisation’s internal whistleblowing policy or grievance procedure, leapfrogging directly to the press. In those circumstances, a tribunal will be interested in whether there was in fact a more appropriate recipient, such as the employer or a regulator, who would have been better placed to investigate or had a direct interest. In most cases, the media will almost invariably be at the bottom of the hierarchy of appropriate recipients.
Having an effective whistleblowing policy and procedure in place plays a key role in encouraging internal whistleblowing, making it less likely that a worker will try to blow the whistle externally and that any external disclosure would be protected. If a worker can see that there is a clear process internally through which their concerns will be investigated, this is likely to instil confidence.
However, this is just one factor, because they must also feel safe to come forward. If a whistleblower does not trust that they will be listened to internally or that appropriate action will be taken, going to the media becomes more appealing (regardless of whether they feel they will be protected or not). It is therefore important for senior leaders to foster a culture where staff feel confident that they will be listened to if they speak out.
For more information on effective whistleblowing management, visit our dedicated website. Please get in touch if you wish to discuss anything further.