Blowing the whistle on water
Given the public interest and health issues relating to the water industry, utilities and their supply chains need to ensure they following best practice in managing whistle- blowing, says Lee Ashwood, an associate of legal firm Eversheds
Whistleblowing has been hitting the headlines in recent months and the water industry should be taking notice. This is because industries, like water, which are in the public eye, affect public life, are heavily regulated and have high standards of health and safety, have been affected.
A good example is how hospitals have been hit by scandals following staff raising concerns publicly about the standards of care and management. Those who do blow the whistle can be protected from reprisal from their colleagues and their employer by legislation. They can bring Employment Tribunal claims and be awarded compensation if they win.
Under the UK’s current, complex legislation, an employee who raises an allegation of a certain type of malpractice, from a wide range, can be protected. The types of malpractice the law concerns itself with include:
- Damage to the environment
- The health and safety of anyone being endangered
- A breach of any legal obligation, such as a piece of industry regulation
Whilst the allegation needs to be in the public interest for the employee to be protected, it does not need to be true; the employee only has to reasonably believe it is true. Also, the allegation can relate to past, current or future incidents, or it can relate to information about malpractice that is being deliberately concealed.
A whistle-blower is protected from being subjected to any detriment, such as verbal abuse or being overlooked for promotion, by their colleagues or employer, or being dismissed because they blew the whistle. If an Employment Tribunal finds a whistle-blowing employee has been subjected to a detriment or dismissed because they blew the whistle, their employer can be ordered to pay the whistle-blower compensation for any loss of salary and/or any injury to their feelings they have suffered as a result.
Given the legislation and the risk of compensation being awarded, many employers have whistle-blowing policies which usually set out how an employee should raise any concerns.
The policies should reassure them that they will be protected from a detriment or dismissal if they do.
Employees are becoming increasingly aware of what whistle-blowing is and of their right to protection. The Government has issued a call for evidence to enable it to assess whether current legislation goes far enough to protect whistle-blowers.
The whistle-blowing charity Public Concern at Work has started to campaign for more to be done to protect whistle-blowers. It has also produced a Code of Practice and is campaigning for it to become mandatory for employers to adopt it.
As a consequence, it is expected that more employers will be confronted by employees raising allegations they believe amount to whistle-blowing and bringing Employment Tribunal claims for compensation for failing to be protected.
At the moment there is no legal requirement for an employer to have a whistle-blowing policy, although good practice dictates that all employers should have one and a recent survey by Public Concern at Work found that 90% of the employers surveyed have a whistle-blowing policy in place. However, the survey also found that that less than half of all employees are aware of their employer’s whistle-blowing policy and one-third of the employers did not think or know whether their policy was effective.
Not having a widely-known or effective policy will not help an employer defending an Employment Tribunal claim from an employee who is claiming they were not protected from reprisals after they blew the whistle. Employers should ensure that they and their managers understand what constitutes whistleblowing so that, if it occurs, it is identified. The employer can then take steps to protect the whistle-blowing employee from any detrimental treatment as a result to reduce the risk of any subsequent Employment Tribunal claims.
Employers should also make sure that their policy clearly explains to employees what they should do if they have any concerns about malpractice in the workplace. If employees know that there is a specific process to be followed and a specific person to report their concerns to, they are less likely to take their concerns outside of the business such as to an industry regulator or the media.
This is particularly important in industries where allegations of malpractice (whether true or not) are likely to be of interest to a broad section of the public, such as the water industry. Given that the Government is carrying out a review of the current whistle-blowing legislation, it seems likely that a code of practice of some sort may well be introduced at some point in the future.
In the meantime, however, employers should consider acting now to ensure an effective and widely-known whistle-blowing policy is in place and that their managers understand how and when to apply it.
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