Many news outlets have been following the case of Lucy Letby with some now focusing on calls for an investigation into whether there was a failure to heed warnings given by her colleagues.
In this context, the word ‘whistleblower’ is thrown around, but what does this actually mean for individuals in an employment context?
The law protects employees from being dismissed and prevents employees or workers from being subjected to a detriment on the grounds that they have appropriately made a protected disclosure. Concerns can be raised at any time about an incident that happened in the past, is happening now or which you believe will happen soon.
Acas sets out some examples of what could amount to a protected disclosure, for example:
- a criminal offence – e.g, if an employer has been trying to bribe people
- the breach of a legal obligation by an organisation – e.g, if an employer has neglected their duty of care towards children in a care home
- a miscarriage of justice – e.g, if a member of staff has been fired for something that turned out to be a computer error
- someone’s health and safety being in danger – e.g, if an employer has forced staff to serve food they know has been contaminated
- damage to the environment – e.g, if an employer has been regularly polluting local rivers
There is also a prescribed list of people or bodies to whom you can make such disclosures, again listed on the Acas website.
Sometimes confusion arises between a genuine whistleblowing disclosure and a grievance. Equally, some aggrieved employees will seek to rely on whistleblower protection when pursuing a claim knowing that there is no financial cap on compensation in whistleblowing claims and no requirement for a minimum period of service.
It is important to remember that the disclosure must be in the public interest, which means it should usually affect others such as workers, customers or the general public. Therefore, if you have an issue or grievance that is just personal to you, it is unlikely to satisfy the conditions to afford you protection and you should consider other avenues for addressing your concerns.
Other than in certain sectors, there is no positive legal obligation on an employer to have a whistleblowing policy. Even if your employer does not have such a policy though or has a “paper policy” which is not effectively enforced, you will still benefit from whistleblower protection.
Many employers now recognise the importance and benefits of effective whistleblowing and will have policies that seek to encourage effective internal whistleblowing and protect whistleblowers. If your employer does have such a policy, it is useful to review it before making a report.
It remains to be seen whether any of the recommendations out of the anticipated Judge led enquiry into the Lucy Letby case will involve any change to the law on “protected disclosures”.
In the meantime, if you need assistance through navigating and understanding the law around whistleblowing or feel you have been treated unfairly or suffered a detriment as a result of making such a report, do contact your usual legal adviser or a member of the employment team.