Must a whistleblowing complaint be in writing?

Posted in : Seamus Says - Employment Law Discussion on 3 August 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Q: "Is there anything in law that a whistleblowing complaint must be in writing or that an employer need not investigate a complaint unless it's in writing. Secondly, I know that whistleblowing should not be the method of reporting a personal complaint of harassment, but what are your thoughts on ethics online reporting system, whereby employees can report, for example, harassment anonymously?"

Scott: So if we take that first one there, whistleblowing (a protected disclosure) doesn't have to be or does it have to be in writing. That person who left on the last day and threw in a complaint, that could well be a whistleblowing complaint, or somebody puts in a sick claim, that could be a whistleblowing complaint. But there's nothing in law that says that it has to specifically be in writing. It has to be about some kind of breach of law.

Seamus: Yes, that's it. I think my position would be that if anyone puts a call through to me and says, "I've got wind of this, or I've been made aware of it, or an employee has approached me and told me this, what am I do to do about it?" my advice is always, well, when you know about it, you know about it. You should investigate it. You can't, as you said earlier on, un-know about it now that you do. It's very difficult whenever whistleblowing complaints or notice is given of them anonymously, because you have no one to revert back to. You have no way of confirming what it is that they're saying. But just because that's the position, it doesn't mean that you shouldn't investigate it. Similarly, just because it's not in writing doesn't mean that you can ignore it.

There is a mechanism within the tribunal process that you can bring a claim because you've raised a whistleblowing, you've blown the whistle and maybe that there's been a detriment that has happened after that. From my knowledge, you don't necessarily have to prove that you put that in writing to anyone. Yes, it will help your case. But if you have evidence that you did tell someone, maybe a manager or what is up the line, and, as you know, there's no formal requirement for a year's service to bring a claim for detriment under whistleblowing. So it is something that employers should take seriously.

Scott: There's no service requirement as there would be for unfair dismissal and there's no limit to the award the person can get either.

Seamus: That's the very important point. Also, what they may bringing to you is information that is of a criminal nature. You may be duty bound within your own policies and procedures, within your organisation to investigate and/or report those matters that have come to your attention. So I don't think that it's acceptable just because it isn't in writing that you don't do anything about it. I think where it's brought to your attention, you should be taking steps.

You can look at those other things in terms of is the employee that's reported this, maybe they're leaving, they're walking out the door. Are they being vexatious? Is there a genuine belief in terms of what has happened? Is there a legitimate interest? All those sorts of things, the nitty-gritty you can get into it. But on first blush, where there's a whistleblowing issue that that has arisen and if it's not writing, I would proceed.

Scott: It's in your interest to find out about it and nip it in the bud. There are a number of things that would happen if it gets out into the public arena alone, never mind the fact that you're losing money potentially. You don’t want to risk it.

Seamus: Someone could take to social media, to Twitter, and they could sully the reputation of the organisation, where you've been given information and you ignore it, there's no real shoulder to cry on there in terms of what you do about it if it does go into the public domain afterward.

Scott: I will assume, Seamus, that you're not going to chat about ethics online reporting and anonymous harassment-type things. These are things that you do not look on favourably. So we'll look at that. There have been a number of teachers that have been the victims of RateMyTeacher and things like that.

Seamus: Yes. Absolutely.

Scott: You don't want to go down that road. I don't think it's very good for employment relations.


This article is correct at 03/08/2018

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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