Report reveals 20% of COVID-19 Whistleblowers are dismissed 

In a climate of high anxiety about our health, safety and security, it is more important than ever that employers listen to whistleblowers. Unfortunately, UK whistleblowing charity Protect has found that some employers are ignoring their employees’ concerns or, in serious cases dismissing them. This post will take you through Protects key findings as well as your rights when it comes to speaking up at work. 

What is a Whistleblower?

A whistleblower is someone who ‘blows the whistle’, by raising a concern to someone in authority (e.g. their employer) about a specific type of failure - known as a ‘protected disclosure’’.

To be a ‘protected disclosure’ under law, the concern should relate to one of the following six prescribed categories:

• criminal offence;
• breach of legal obligation;
• miscarriage of justice;
• danger to health and safety of others;
• damage to environment; or
• the deliberate concealment of information relating to any of the above areas. 
  

The whistleblower must also reasonably believe that their concern is in the public interest. Public interest is not defined in the law but generally this means that a concern could have wider implications for others. 

In the context of the coronavirus pandemic a protected disclosure could, for instance, include an employee raising issues relating to furlough fraud, inadequate PPE or a lack of social distancing measures in the office.

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What protection is afforded to whistleblowers?

In the workplace, whistleblowers have the legal right not to be unfairly dismissed,or subject to any other detriment, for having made a protected disclosure to their employer (or other relevant organisation). Detriments that employees could experience (other than dismissal) as a result of blowing the whistle may include: 

• Being bullied or harassed by colleagues;
• Being isolated or blocked from team events;
• Being demoted/denied a promotion; or
• Facing a disciplinary sanction like a written warning. 
  

Legal protection for whistleblowers is very far-reaching, applying to any person who makes a protected disclosure so long as they are deemed to be a ‘worker’. The definition of worker includes employees, trainees, freelance workers, seconded workers, agency workers and directors. Protection can also be extended to former employees/workers, who should not be subject to a detriment because they have raised a concern with their former employer (such as an adverse reference).

Significantly, if dismissal of a whistleblower is linked to a protected disclosure, then there is no cap on possible compensation awarded to the employee in an employment tribunal. There is also no minimum service time requirement to get an award (unlike regular unfair dismissal claims which can require employees to have 2 years service). 

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Protect’s findings 

The ability for workers to ‘blow the whistle’ has become of particular importance during the pandemic. Indeed, workers are not only exposed to higher risks to their health and safety, but also serious issues such as fraud in relation to the furlough scheme. 

UK charity Protect, which runs an advice line for whistleblowers and supports more than 3,000 whistleblowers each year, said it had been inundated with Covid-19 whistleblowing concerns since the start of the pandemic, with many being “of an extremely serious nature”. The majority of cases received in the context of Covid-19 related to furlough fraud and public safety, with lack of PPE and provision for social distancing being chief among concerns. 

Significantly, in a recent report, Protect found that:

• 20% of employees who raised concerns about Covid-19 issues were subsequently dismissed after raising their concerns;
  

• employers ignored 41% of all whistleblowers raising Covid-19 related concerns, with figures climbing to 43% for public safety related concerns;
  

• furlough fraud made up 62% of COVID-19 cases to Protect’s advice line;
  

• Just under half of the concerns raised to employers about risks to public safety came from the health sector (29%) and the care sector (19%).  
  

The findings of the report, published in October this year, are derived from 638 COVID-19 related whistleblowing cases reported to Protect in the period 23 March - 30 September 2020. The findings suggest a worrying lack of employer engagement with whistleblowers, and ultimately insufficient concern for the failures identified in such unprecedented and dangerous times.

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A concerning picture and need for reform

By ignoring or failing to support whistleblowers, employers lack a crucial means of rectifying any risks or flaws in the systems they have put in place.  

As Protect highlights, their findings suggest a systemic issue with employers current whistleblowing procedures, with many of the policies in the workplace seeming to act as a mere ‘tick box exercise’ rather than promoting meaningful engagement with employees and their concerns. 

What’s more, the alarming whistleblower dismissal rate that Protect has identified could serve to undermine the willingness of employees to come forward with concerns in the future - particularly when redundancy fears are already top of mind. If concerns are not reported, failures will remain unchecked by organisations, putting both their business and workers at risk. 

In response to the issues identified, Protect are in favour of greater legal protection for whistleblowers. They suggest creating a legal standard for employers to have whistleblowing arrangements in place; having a penalty regime in place to help hold employers accountable; giving relevant regulators the power to place failing organisations under supervision; and placing different industry regulators under new legal standards so that they themselves feel the need to hold employers accountable. 

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Dealing with workplace concerns 

It remains to be seen which of Protect’s recommended changes will be adopted into law, but in the meantime there is plenty of support available to you if you want to raise a concern at work, particularly in light of the pandemic.

If you are thinking about speaking up about a concern you should be careful to share the information in the right way to ensure you get the best protection. We have put together a few key considerations to assist you with next steps:

• If you have a concern that you think falls within the six areas of wrongdoing identified above, read your employers whistleblowing policy (if they have one). This should give guidance as to what support and procedures are available to you e.g. a designated whistleblower hotline.
  

• Other types of concerns (i.e. falling outside the 6 prescribed areas) could be raised as a normal grievance e.g. for issues that relate to your personal employment rights or your own specific treatment in the workplace. You should review your employer's grievance policy for further guidance. 
  

• Think carefully about who you are raising your concern to. Protected disclosures should usually be made to someone with management responsibility. If there is a specific senior person designated as the ‘whistleblowing champion’ (or equivalent title) in company policies you should ideally go to them in the first instance. However it is fine to approach a different person such as a member of HR or compliance if you feel more comfortable doing so. 
  

• Think twice before sharing concerns with a junior colleague rather than the designated senior person. If you disclose information about a wrongdoing to a colleague it may not carry the same whistleblower protection if you subsequently suffer a detriment or dismissal. 
  

• If you are concerned that you may be treated badly for raising an issue, let your employer know and document your concerns.
• If you think it is likely that your employer will treat you badly if you raise a concern or that they might conceal some evidence, you could think about raising your concern elsewhere. This could include reporting your concern to an appropriate regulator but you should seek further advice before doing so. 
• You could consider raising your complaint anonymously if you would rather not reveal your identity. However it may be difficult to argue that you suffered unfair treatment because of whistleblowing if you later need to bring a claim. 

If you’re in any doubt about your situation, including who to speak to, you can contact Protect for further guidance. Protect can offer practical advice by telephone (020 3117 2520), email or letter. Everything you share with them is confidential and protected by legal privilege.

With thanks to Louisa Cuddy for her assistance with this post