Whistleblowing

[katyandjohn22]

My husband has had some problems at work and is facing allegations of misconduct. He is a very honest hard working person and sadly he is really traumatised by his actions and the company response.
Can anyone tell me if employers should have a whistleblowing policy and make employees aware of it? Also, is there any law which states you cant whistleblow anonymously to protect yourself? Is this viewed as dishonesty?
If an employee isnt aware of procedure, how can they be expected to
use correct procedure?
Thanks

[charitynjw]

Re: Whistleblowing

Hi, & sorry to hear of your problems.

Obviously it is difficult to comment without knowing more detail, but a start may be the Public Interest Disclosure Act 1998.

http://www.direct.gov.uk/en/Employme...ce/DG_10026552

Also, ACAS are usually pretty good.

http://www.acas.org.uk/index.aspx?articleid=1919

[labman]

Re: Whistleblowing

I know public sector organisations are expected to have whistle blowing policies, I don't know about the private sector. However, your husband is perfectly entitled to ask his employers for their policy in this area.

Taking a pessimistic view in order to try to protect your husband, is he in a union? Should this lead to any sort of disciplinary action, he is perfectly entitled to take 'a friend' along to any proceedings, and should not attend any meetings where there is not a clear written agenda beforehand.

[leclerc]

Re: Whistleblowing

My husband has had some problems at work and is facing allegations of misconduct. He is a very honest hard working person and sadly he is really traumatised by his actions and the company response.
Can anyone tell me if employers should have a whistleblowing policy and make employees aware of it?
they should have a whistleblowing policy in regards to health and safety.

Also, is there any law which states you cant whistleblow anonymously to protect yourself?
Many companies policies will have what they call a confidential whistleblowing telephone line which is anything other than confidential. I have heard one story in which the whistleblower themselves lost their job after using one of these lines.

Is this viewed as dishonesty?
If an employee isnt aware of procedure, how can they be expected to
use correct procedure?
Thanks

The employee is protected in law with regards to whistleblowing. I'll get you a thread which I wrote with regards to this issue.

In fact, Amethyst wrote this in regards to the general forum: whistleblowers - reasonable belief is sufficient - Legal Beagles Consumer Forum



Further links include: Public Interest Disclosure Act 1998: Public Interest Disclosure Act 1998

[katyandjohn22]

Re: Whistleblowing

The law states that a person is entitled to use a pseudonym if this use does not have fraudulent intent and is not meant to evade any legal obligation.
Any opinion on whether using a pseudonym to pass on information about wrongdoing in the organisation would be viewed as fraud? The intent was honest in nature.
Thanks for any advice!

[labman]

Re: Whistleblowing

The law states that a person is entitled to use a pseudonym if this use does not have fraudulent intent and is not meant to evade any legal obligation.
Any opinion on whether using a pseudonym to pass on information about wrongdoing in the organisation would be viewed as fraud? The intent was honest in nature.
Thanks for any advice!

I would have thought that would be determined by the individual policy document.

[charitynjw]

Re: Whistleblowing

Does it say you can't do it anonymously?

[bluebottle]

Re: Whistleblowing

The Public Interest (Disclosures) Act applies to ALL employers - public, private and voluntary sectors.

As long as you follow the rules under the Act, any employer who tries to discipline or dismiss an employee for making a disclosure under the Act faces an automatic unfair dismissal claim.

Is an in-house HR department involved or a freelance HR consultant? Unfortunately, the individuals who seem to work in HR have a very limited knowledge of the law and get very frustrated and upset if they come up against legal professionals, law enforcement professionals (serving and retired) and trade union officials, who aren't afraid to stand up to their bullying. If your husband belongs to a trade union, he should get them involved now. Otherwise, speak to an employment lawyer.

[CleverClogs]

Re: Whistleblowing

The law states that a person is entitled to use a pseudonym if this use does not have fraudulent intent and is not meant to evade any legal obligation.
Any opinion on whether using a pseudonym to pass on information about wrongdoing in the organisation would be viewed as fraud?

Of course it wouldn't.

However, there may be some knuckle-headed people who might not believe pseudonymous reports.

[CleverClogs]

Re: Whistleblowing

Is an in-house HR department involved or a freelance HR consultant? Unfortunately, the individuals who seem to work in HR have a very limited knowledge of the law and get very frustrated and upset if they come up against legal professionals, law enforcement professionals (serving and retired) and trade union officials, who aren't afraid to stand up to their bullying. If your husband belongs to a trade union, he should get them involved now. Otherwise, speak to an employment lawyer.

Or to a journalist.

strobes@private-eye.co.uk

[katyandjohn22]

Re: Whistleblowing

Now 3 months on and issues proceed very slowly. His union advised we submit an ET 1 for whistleblowing detriment and we have a case management discussion next week. Not sure whether evidence will be heard and whether his employer could have the case struck out then? Seems he'll be a huge disadvantage with us against large employer.
Heard whistleblowing cases are difficult to win! Our legal team seem quite optimistic but had very difficult time and hard to be positive.
His union saying that trumped up charges to conceal whistleblowing which they'll pursue at ET. Not disciplining for wb so no detriment they are saying.
Not sure if any previous cases where dismissal hasnt taken place but on sick leave. Not sure how he'll ever return to his job and he was trying to do the right thing! Very sad really! He still has 22 years till retirement!
Any comments would be appreciated!
Many thanks

[bluebottle]

Re: Whistleblowing

Has your OH's legal team mentioned the Protection from Harassment Act 1997 at all? Very useful for dealing with workplace bullying and puts the onus on the employer to prove they haven't engaged in bullying or encouraged or allowed it to happen. If your OH has been subjected to this on at least two occasions, it is a useful weapon to have up your sleeve.

There is also case law on it - Mjrowski -v- Guys & St Thomas's NHS Trust 2005 - a Court of Appeal ruling which holds an employer vicariously liable for bullying of an employee by other employees.

[labman]

Re: Whistleblowing

Excellent point BB, the only law I'm aware of which reverses the burden of proof can be an incredibly useful one to use.

[charitynjw]

Re: Whistleblowing

Hi katyandjohn22

I would think that you need to try & get a clear idea of the employer's position on this, ie what reasons they are giving for the grounds for disciplinary action, and pick it to pieces to reveal the true reason.
Although it is possible to dismiss an employee while they are on sick leave, usually citing 'incapability', it is not the norm as the process is normally protracted, would usually require Occupational Health involvement, & could possibly leave the door open to a disability claim (failure to make reasonable adjustments).

[charitynjw]

Re: Whistleblowing

Interim Relief - a little-known tactic.

Important - must be applied for within 7 days of termination of employment.

Preventing dismissal: ‘interim relief’

19 July 2010 / Naomi

Tribunals have power, in certain limited circumstances, to order your employer to continue your employment until your unfair dismissal claim has been heard. This is called ‘interim relief.’ The power isn’t much used, but it is potentially very valuable.
When you can get it

The three key facts about interim relief are:
You can only apply for it if you are saying that you have been dismissed for a protected disclosure (‘whistle blowing’), or because of your activities as a trade union member, a health and safety representative, an employee representative for the purposes of TUPE consultations, or a trustee of an occupational pension fund.
You will only get it if the tribunal considers – after a short hearing arranged fast – that it is likely that the tribunal that hears the main claim will find that your dismissal was for one of these reasons.
You have to claim it within 7 days of your last day of employment. If you are dismissed with notice, you can present your claim before dismissal takes effect. There is no power to extend time.
What it means

If you get it, you are either reinstated into your old job, or re-engaged in a comparable job, or else (which is probably the most likely outcome) your employer is simply ordered to carry on paying you in an arrangement rather like suspension on full pay. Claims can take many months and sometimes a year or more to come to a hearing, so getting the tribunal to order your employer to give you your job back meanwhile – or at least carry on paying you – could make a big difference.
Practicalities

Because of the very short deadline for claiming interim relief, applying for it means working fast. The usual warnings about the cost of instructing lawyers are relevant, only more so: urgent work tends to be more expensive than non-urgent work; and your choice of lawyer is likely to be more restricted than if you had a couple of months to play with.
Time for making a considered decision about whether or not to go ahead with the application at all will be squeezed, too: you and your adviser will be making decisions under considerable pressure of time with less information and less thought than you’d like. The result could be that you spend a lot of money making an urgent application that you’d actually have been advised not to pursue if there had been more time to consider its strength.
Getting free representation in time for an application for interim relief will be even more difficult. Lawyers in Citizens Advice Bureaux and law centres are almost always rushed off their feet: even if you’re lucky enough to get help, it can easily take several weeks just to get an appointment.
This all means that if you want to try for interim relief, you may not have much realistic option other than to make the application yourself.
There’s no special form for applying for interim relief: you’ll need to complete an ET1 form in the usual way (only faster), and write in box 6.1 under ‘What compensation or remedy are you seeking?’

interim relief under section 128 of the ERA 1996

Because applications are quite rare, and tribunal staff may not be looking out for them, it might also be an idea to write in box 7.1 something like:

This claim includes an application for interim relief under section 128 of ERA 1996, so a PHR to determine that application will be required as soon as practicable.

The hearing

The tribunal will conduct a PHR (pre-hearing review) to determine the application. It has to do this ‘as soon as practicable’ after receiving it. That means you can’t relax after rushing to get your ET1 presented during the first 7 days after dismissal: you’ll need to be ready for the hearing of the application very soon after that.
At the PHR, the tribunal can consider oral and documentary evidence. Your job is to persuade the tribunal that your complaint that you have been dismissed for one of the prohibited reasons is ‘likely’ to be successful at a full hearing. Because the application is supposed to take place so quickly, you can’t expect the tribunal to consider a large volume of evidence. Keep both oral and documentary evidence to a minimum: select your very best points, and focus on them; and if you get the chance to cross-examine any witnesses on the other side, keep that short too. Apart from anything else, you don’t want to give them a practice run at answering all your questions before the main hearing. If your story is long and complicated, you are unlikely to succeed in this application: see the EAT’s judgment in Raja v Secretary of State for Justice. The application is probably only worth making if it’s pretty obvious that you’ve been dismissed for whistle-blowing or one of the other prohibited reasons.
Acknowledgment

This post was inspired by a useful article on the same subject by Stephen Musgrave of Bird & Bird in the Employment Lawyers Association Briefing. You can read his article – reproduced by kind permission of the author and ELA –

http://etclaims.co.uk/?s=protected+disclosure