By Sacha Sokhi, Solicitor in the London Employment & Professional Discipline Team
As the UK once again moves into a staggered system of emerging out of the latest lockdown, many furloughed workers and those working from home will be concerned about what their working life will look like in a post-lockdown world.
Whistleblowing charity, Protect, examined over 600 COVID-19 related calls to its advice line last year and found the majority of cases were over furlough fraud and risk to public safety due to coronavirus. In January 2021, the BBC reported that HMRC are investigating more than 21,000 reports of suspected furlough fraud.
If you are an employee or worker concerned by your employer’s practices due to the pandemic, then read on as we answer your most common questions around whistleblowing.
Firstly, what is whistleblowing?
The term “whistleblowing” refers to an employee or worker reporting wrongdoing or raising a concern they reasonably believe is in the public interest and is a “qualifying disclosure”.
A “qualifying disclosure” tends to show one or more of the following:
- A criminal offence
- A breach of any legal obligations
- A miscarriage of justice
- Dangers to health and safety of an individual
- Damage to the environment
- The deliberate concealing of information about any of the above.
The Employment Rights Act 1996 requires employers to refrain from subjecting whistleblowers to any detriment, including dismissal, provided their activities fall within the above.
Do I have whistleblowing protection?
You have whistleblowing protection if you are either an employee or a “worker” (which includes consultants who undertake to provide work personally, contract workers and agency workers, among others).
There is no requirement for a minimum period of service in order to bring a claim for whistleblowing, unlike straight unfair dismissal claims where there is a 2 year service requirement.
If you have yet to report your concern, it is advisable to get advice on whether you are protected under whistleblowing law if unsure.
My employer has been wrongfully claiming from the Government’s Coronavirus Job Retention Scheme (also known as ‘furlough scheme’). I brought this up with them but they threatened to dismiss me if I report this to HMRC. Can they do that?
It is illegal for your employer to dismiss you or subject you to detriment (such as putting you on a performance review, withholding a pay rise or threatening to dismiss you) if the reason it is doing so is because you reported furlough fraud. Furlough fraud is a criminal offence and likely to meet the test of being in the public interest.
If you consider it likely that your employer is about to dismiss you due to whistleblowing, then it is important to get legal advice without delay, in order to ensure that you have made a qualifying disclosure in the correct manner.
What if my employer asks me to come into work when it is unsafe?
You should feel comfortable that your employer’s place of work is COVID-secure and that they have made any reasonable adjustments you require and carried out proper risk assessments. If not, this may constitute a danger to the health and safety of you and others.
Other examples may be if social distancing is not taking place in line with current Government guidance or if appropriate personal protective equipment (PPE) is not being provided or enforced. Employers should have adequate risk assessments and health and safety policies in place which they should be actively following.
The above examples are likely to meet the public interest requirement for whistleblowing.
I have lost my job as a result of whistleblowing. Given the current job market, I will struggle to find alternative work quickly. Is there anything that can be done to protect my job?
You may be able to make an urgent application for interim relief for your employer to either reinstate you or continue to pay you whilst your Employment Tribunal claim is ongoing. However, the time limits for applying for interim relief are very tight; 7 days from the date your employment terminates. Furthermore, you must be able to show that your case has good prospects of succeeding at a final hearing in the Employment Tribunal. Therefore, if you have been dismissed and consider that this is due to whistleblowing, do not delay in getting legal advice.
What if my employer wants me to sign a settlement agreement or non-disclosure agreement?
Your employer may ask you to sign a confidential agreement recording the terms of a settlement or termination of your employment, however you still have the right to ‘blow the whistle’ and make protected disclosures. You cannot be contracted-out of this right.
Whistleblowing represents an exception to an employee's normal duty of confidentiality.
I was dismissed 2 months ago and suspect it was because I blew the whistle. Can I still bring a claim for whistleblowing?
A whistleblowing claim must ordinarily be brought three months from the date of the detrimental act or your dismissal. There is limited scope for this time limit to be extended. Whilst time limits in the Employment Tribunal are usually strict, it is often a good idea to get legal advice as soon as possible, especially if you think you may be out of time to bring a claim.