Imagine this scenario: You have been working in a support role for a financial services business for three years. You have a good relationship with your boss – who has always treated you well, particularly at bonus time. Then one day you discover that your boss has been breaching strict trading rules. Do you speak out or keep quiet?
Whistleblowing, which is effectively reporting wrongdoing at work, raises a number of things including financial, practical, legal and moral considerations. Some people may prefer the quiet life choosing not to rock the boat unless they really have to. Others could feel that the only correct thing to do is to spill the beans. Whistleblowing has of course had a lot of publicity, recently, notably in connection with the Hillsborough disaster and the Mid Staffordshire NHS trust scandal, and there have been calls for a culture change and better protection for those who do speak out.
The current legal position
The law protects whistle blowers whose employer dismisses them or subjects them to any other detriment (i.e. disadvantage) on the ground that they have made a protected disclosure. The information disclosed must, in the reasonable belief of the worker, tend to show that one or more of the following has taken place, is taking place or is likely to take place:
- A criminal offence
- Breach of any legal obligation
- A miscarriage of justice
- Damage to the environment
- Danger of the health or safety of any individual
- The deliberate concealing of information about any of the above
and the worker must reasonably believe that the disclosure is in the public interest.
The relevant legislation, the Public Interest Disclosure Act 1998, encourages that the disclosure should be to the worker’s employer but disclosures to certain other parties may be protected if more stringent conditions are met. In the case of activities regulated by the Financial Conduct Authority this could include, for example, disclosure to the Financial Conduct Authority itself.
Bringing a claim
If you feel you have been dismissed or suffered any other detriment because you have reported wrongdoing you could consider bringing a claim in the employment tribunal. There is no minimum period of service required (which is generally at least two years for unfair dismissal claims) and there is no restriction on the maximum unfair dismissal compensation award (which is usually the lower of 52 weeks’ pay or £76,574). Any claims must normally be filed (with the requisite fee) within three months (less a day) from when the employment ends or, where the employment is continuing, from the act or failure complained about. Where there is a series of similar acts or failures the same time limit runs from the last of them to occur. You would also be required to follow the Advisory Conciliation and Arbitration Services (Acas) early conciliation process prior to issuing a claim.
So, back to the question – do you tell? Provided you do not have a duty to disclose arising out of your employment or as a result of another obligation, imposed on you, for example, by a regulatory body, the choice should be yours. Factors that you might wish to consider could be: the desire to do the right thing; risk of retaliation, which may often be concealed; avoidance of any personal risk (i.e. from a regulator); damage to job prospects if you become known as a whistle blower; and risks, costs and uncertainties of pursuing a claim. Ultimately it is a matter for you, though it would be prudent to seek advice before potentially putting the cat among the pigeons.
Matt Gingell is a partner at Gannons. Matt specialises in employment law and advises executives and companies on a wide range of employment issues. Matt also regularly writes articles for external publications.