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Whistleblowers are legally protected from being subjected to any detriment or (in the case of employees) being dismissed because they have made a protected disclosure. However, the recent Court of Appeal decision in Sullivan v Isle of Wight Council has confirmed that job applicants (other than those applying for jobs in the NHS) cannot bring whistleblower claims.
Who, then, is entitled to whistleblower protection?
- Employees.
- Workers – note that this is wider than the general definition of worker under section 230(3) of the Employment Rights Act 1996. It includes (amongst others):
- Individuals engaged to perform work personally for someone who is not a client/customer (commonly referred to as ‘Limb B’ workers).
- LLP members.
- Agency workers.
- Certain job applicants in the NHS.
- Those in Crown employment.
Notwithstanding that there are limitations on who can be classified as a ‘whistleblower’ (e.g. genuinely self-employed individuals are excluded), in internal whistleblowing policies, it is often sensible for employers to adopt a wide definition of the types of people who can raise a concern under the policy. The policy is a route through which individuals can report potential wrongdoing, which is in the employer’s best interests to discover. Encouraging internal reporting allows an organisation to investigate, manage and address concerns raised under the policy, making it less likely that external reports will be needed, and potentially avoiding reputational damage and the risk of financial liability.
Having an effective whistleblowing policy encourages a culture of openness and accountability and demonstrates to the workforce that misconduct will not be tolerated and that those who report wrongdoing will be supported, with their concerns investigated and addressed. For further information on creating a robust whistleblowing procedure, see our recent article here.
To discuss any of the issues raised in this article, please contact Rachael Lloyd.
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