A Rise in Protected Disclosures during Coronavirus?

As workplaces reopened over the last few months (prior to the recent announcement suggesting that people should “work from home wherever possible”) many employees may have been worried about their safety at work, that of their co-workers and customers. Moving forward, employers must make sure that health and safety concerns don’t become whistleblowing opportunities.

Where an employee believes their employer isn’t following government guidance or is putting health and safety at risk, the law provides specific whistleblowing protections. These provisions require employers to take all workplace risks or concerns raised by workers seriously, and to ensure the ‘whistleblower’ is not subject to unfavourable or detrimental treatment as a result of raising the issues.

But not every issue raised about health and safety in the workplace will constitute whistleblowing. For an employee to be a ‘whistleblower’, they must be reporting information they believe a) reasonably shows certain types of wrongdoing by the employer, and b) is in the public interest. This includes things such as criminal activities and, relevant here, health and safety breaches. If an employee has met these requirements, they are protected from suffering a detriment, such as disciplinary action, as a result of making a protected disclosure and can bring a claim if they feel they have been treated unfairly because of it.

For employers, feedback from the frontline can be invaluable in ensuring working practices and behaviours are compliant, in the interests of personnel and customer safety.

Since failure to comply with health and safety legal obligations is a criminal offence and can result in damage to reputation, it is helpful for employers to approach whistleblowing as integral to an open and transparent culture that supports health and legal risk management.

RECENT CASE REGARDING PPE

A few weeks ago, MP Nadia Whittome spoke out about the fact she believed she had been dismissed from her position as a casual care worker for raising issues about PPE and the shortages that the company faced. The company then terminated her contract as a result. The company have since admitted that Nadia was indeed correct about the shortages of PPE.

While her employer has said that it had no more need for casual workers, the timing of this does raise the argument that the two are connected and that the employer’s actions amounted to a detriment, thereby entitling her to bring a claim. Given employees do not need to have two years’ service to bring claims where whistleblowing is concerned, employers should proceed with caution.

SO DOES THIS MEAN THAT AN EMPLOYER IS EFFECTIVELY PREVENTED FROM DISCIPLINING EMPLOYEES WHO MAY HAVE RAISED CONCERNS?

Not necessarily. The manner in which an employee goes about raising their concerns or making a point about their concerns may give an employer grounds to take disciplinary action where they consider the employee’s actions to amount to misconduct or even gross misconduct. For example, an employee who raises a concern with their employer and then proceeds to make negative and detrimental statements about the business on social media could be disciplined.

In this case, their actions may fall outside of the protection offered by the legislation, allowing the employer to take disciplinary action. That said, employers will still need to be able to justify any sanction as reasonable to avoid it being deemed to be detrimental treatment resulting from the concerns raised.

The publicity this case has generated has made employees across all sectors more aware of their rights in relation to their safety at work and raising their concerns. With this in mind, and the fact that employers are now under the microscope, it is more important than ever that employers understand their rights and how best to handle these situations without exposing themselves to claims.

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