We asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims for discrimination, constructive dismissal or some other serious difficulty. 
 

Employees are entitled to raise concerns about perceived health and safety issues. These concerns may constitute a “protected” disclosure under whistleblowing legislation if certain conditions are met. If their disclosure is “protected”, the employee has further protection against “detrimental treatment”. This additional protection can cause issues in practice, where an employee makes a disclosure as part of a wider dispute, or where they disagree with how their disclosure has been handled. 

From a risk perspective, you should first consider if the disclosure is likely to be “protected”. First, it must be a “qualifying” disclosure, meaning it relates to one of five types of malpractice. These include “failure to comply with a legal obligation” and “threats to people’s health and safety”, so it seems likely this first requirement has been met. 

Next, you need to consider whether the qualifying disclosure is “protected” based on how it has been made. The employee has made the disclosure to you as their employer, which is essentially their default option. The employee must hold a “reasonable belief” that their disclosure is in the public interest. Importantly, the employee does not need to be correct in their belief, provided that their belief is reasonable, and the additional legal protection from detrimental treatment applies regardless of whether the concerns they have raised are ultimately substantiated. You can deal with deliberately false or malicious disclosures as a disciplinary issue, but this is often high risk due to the risk of detriment claims, and you should have strong evidence before proceeding.  

Whistleblowers are not entitled to participate in the investigation following their disclosure or to receive a copy of the investigation report – this is a common misconception. However, it will often be best practice to meet the whistleblower to obtain further information from them about their concerns. Once the investigation is complete, you could consider providing them with the outcome of the investigation or a summary of the findings. 

This decision may depend on whether the report contains witness evidence from other employees, sensitive or confidential business information, or information which could cause reputational damage if they were widely disclosed. You should consider whether your whistleblowing policy includes any requirements around the information to be provided to the whistleblower following the investigation. You may be able to provide a summary of the investigation, the full report or a redacted version, depending on your policy and the report’s contents. 

It is also common for employees to request information about their disclosure and subsequent investigation through making a data subject access request. If a request is made, you will need to respond and comply with your data protection obligations. However, it is important to note that the employee is only entitled to copies of their personal data, and you will need to carefully review and apply any exemptions before disclosing information. This may result in some or all of the report falling outside of your disclosure obligations. 

You should ensure, as far as possible that the employee’s grievance is handled fairly and properly in accordance with your usual grievance procedure. In these circumstances, there is always the risk that the employee will argue that how their grievance has been handled constitutes “detrimental” treatment in response to their protected disclosure. It is common in these circumstances for employees to conflate the two processes, such as by raising issues within their grievance which relate to how their disclosure is being investigated. 

You should try, as far as possible, to keep a clear separation between the scope of both processes and the remit of the decision makers. The grievance outcome will give you an opportunity to provide the employee with an explanation of their rights, and that they are not entitled to a copy of the investigation report. You can refer to having complied with the steps set out in your whistleblowing policy, assuming you have complied with it. 

There are several potential options the employee can take if they are not satisfied with your response. The most immediate next step would be to appeal the grievance outcome, though the scope for the appeal would seem quite limited, if their grievance is solely related to their involvement in the whistleblowing investigation and entitlement to a copy of the report. They may allege that the handling of their grievance constituted detrimental treatment in some way. 

In a worst-case scenario, they could bring claims in the Industrial Tribunal for whistleblowing detriment, while still employed. They may also rely on the handling of both their whistleblowing disclosure and grievance to resign and claim that they have been both constructively unfairly dismissed and suffered whistleblowing detriment. In the latter claim, successful claimants can receive an award for injury to feeling, calculated using the Vento bands in the same way as a discrimination claim. 

In summary, an employee who raises a protected disclosure is entitled to protection from detriment, but this does not extend to a right to receive the investigation report. However, these situations can become difficult to manage if the employee alleges that decisions made in the grievance amount to detrimental treatment due to their protected disclosure. Your focus should be on ensuring appropriate separation between the two processes, with the grievance conducted in line with your internal policy and a clear rationale provided for your decision. 

This article was provided by Emma Doherty, an Associate Director in the employment team at Tughans LLP. Emma works exclusively in employment law. You can contact her at: 

Phone: 028 9055 3300
Email: emma.doherty@tughans.com
Website: www.tughans.com