A recently reported high profile example of whistleblowing within a Governmental organisation has once again brought into focus the legislation in this area.
An employee of Her Majesty’s Revenue and Customs (HMRC) is currently facing the possibility of both a prosecution and the loss of his job after disclosing that one of the senior managers within the organisation had allegedly waived a payment of £10m in tax penalties levied against a City of London firm.
Relevant documents were leaked to the National Audit Office and to two parliamentary committees by the employee, an in house solicitor, which allegedly showed that the Permanent Secretary for tax at HMRC had authorised the waiving of the back payments. Subsequently, the manager concerned has denied any personal involvement in any such decision but did confirm that his organisation had made a mistake in approving the deal.
The employee confirmed to his bosses that he was making the disclosure because he thought that such an arrangement to waive this amount of tax could be illegal and that it was his public duty to do so. HMRC have since confirmed that they have launched an investigation into the whole affair, including the issue of the passing of confidential documents to the press and the Parliamentary committee.
The law stipulates that, if employees believe that there is some malpractice or wrongdoing happening in the workplace, they can ‘blow the whistle’ on the behaviour and be potentially protected from losing their job and/or from being victimised by their employer.
Definition
Whistleblowing is therefore the act of ‘making a disclosure in the public interest’, and employees are protected by the law if
- They are a 'worker'
- They believe that malpractice in the workplace is happening, has happened in the past or will happen in the future.
- They are revealing information of the right type (a 'qualifying disclosure')
- They reveal it to the right person, and in the right way (making it a 'protected disclosure')
Employees are protected even if they are blowing the whistle on malpractice that took place overseas, or where the law applying to the malpractice is not a UK law.
Qualifying disclosures are:
- Criminal offences
- A failure to comply with a legal obligation
- Miscarriages of justice
- Threats to an individual’s health and safety
- Damage to the environment
- A deliberate attempt to cover up any of the above
If however employees break the law by the disclosure or if the information disclosed is protected under legal professional privilege, this will not constitute a qualifying disclosure
Protected disclosures exist where employees:
- Make the disclosure in good faith (which means with honest intent and without malice)
- Reasonably believe that the information is substantially true
- Reasonably believe that they are making the disclosure to the right 'prescribed person'
Prescribed persons can be:
- The employer e.g. a director of the company.
- A legal adviser
- A Government minister or member of the Scottish Executive.
- A person from the list (17pages) published by the Government Department for Business Innovation and skills
- Other persons to whom an Employment Tribunal considers it was reasonable to make the disclosure.
If employees believe that they are blowing the whistle on an exceptionally serious failure in a workplace, they may not need to go through the normal channels and can publicly blow the whistle immediately.
It will be interesting to see how the HMRC case evolves. However, all employers should be mindful of the need to publish their whistleblowing policy within their contractual documents to enable their employees to come forward, confidentially if necessary, to highlight these types of issues.
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