Date:

Whistle Test

As published in Commercial Motor – 23 January 2014

How do drivers raise concerns about wrongdoing and how should hauliers respond to those concerns?

Do you have concerns about serious wrongdoing in your company but don’t know what to do.  You fear that if you “blow the whistle” then you will be seen as a troublemaker, ignored or possibly even dismissed.  What should you do? 

Before taking any action, it is important that you understand which procedure to follow so that the company can address and resolve your concerns and provide you with peace of mind that you have complied with your obligations and are afforded the appropriate legal protection.

Whistleblowing legislation was introduced under the Public Interest Disclosure Act 1998 (“the Act”).  The Act was introduced to encourage employees to come forward with disclosures of criminal behaviour or malpractice, without the fear of reprisal or dismissal.  There have been a number of high profile cases involving the NHS, the banks, government departments and large corporate bodies which have demonstrated the effectiveness of the legislation, where employees have raised legitimate complaints and then been subjected to detriments or dismissed.  Significant awards of compensation have been made in addition to reinstatement orders.  In certain cases criminal proceedings have followed for those who have broken the law.

Where whistleblowers have been dismissed, there is, if an application is made quickly, the possibility of obtaining an interim reinstatement order from a tribunal pending a final tribunal to ensure the employee is not financial disadvantaged.

Past, present, prospective

If you reasonably believe there is malpractice in the company, you should follow the firm’s  Whistleblowing policy and report the matter to the relevant person.  Concerns might have to be recorded in writing and you might be invited to a meeting to discuss the allegations so the company can investigate the matter.  The company should not ignore your concerns and must respond to you.

Under the Act, the categories of malpractice are extremely wide so that they include:

  • criminal offences;
  • miscarriages of justice;
  • danger to health and safety of any individual;
  • damage to the environment;
  • breach of any legal obligation;
  • deliberately concealing of information about any of the above.

Malpractice can be past, present or prospective.  If you reasonably believe that the allegation is substantially true then you can make a qualifying disclosure to the company. 

Until July 2013, there was a requirement that any disclosure made had to be in “good faith”. This requirement has been removed and more emphasis placed on the disclosure being in the “public interest” and not for personal gain. For example, under the revised legislation you would not now gain protection under the whistle blowing legislation if you allege that the company has committed a breach of your terms and conditions of employment. This is unlikely to be in the public interest because it is a private matter between you and the company. If you have concerns about any breaches of your terms and conditions, raise them under the company’s grievance procedure.

The situation would be different if you genuinely believed that an employee was unlawfully taking money from the business or was driving while under the influence of alcohol or drugs. Provided you can demonstrate that you have reasonable belief of malpractice, the disclosure is in the interests of the public and you have brought the matter to the company’s attention, you will be afforded protection against any subsequent detriment or dismissal that is causally linked to your disclosure.

Company perspective

If you are senior manager or a director of a haulage company you need to know what to do when someone has blown the whistle. Your immediate concern may be trying to limit any potential exposure/damage to the company’s reputation by containing the information.  While this may be a natural reaction, it is important that you act in an open manner and take the employee’s concerns seriously. 

It is appropriate to instruct the employee to keep the details of the disclosure confidential and not to discuss the matter with any person other than a named individual within the business while the matter is under investigation.

Ensure the company has a whistleblowing policy that sets out the procedure to be followed when a disclosure is raised.  It is important that the company follows the procedure; otherwise there could be criticism for breaching the policy.

If the company does not have a policy, it will need to assign a senior manager to investigate the allegations.  Unless the employee has provided a detailed written account of the allegations, the company will need to speak to the individual to fully understand the nature of the concerns. Once the matter has been investigated, the company should notify the employee of the outcome. 

While most disclosures are raised by employees, the individual does not necessarily have to be an employee to be afforded protection.  Workers (including agency drivers) are protected under the Act, together with people who are training but not employed.

It is best practice is for the company to take any public interest disclosure seriously, regardless of the individual’s employment status.

For an individual to be afforded protection against victimisation and dismissal, they simply need to have raised a public interest disclosure to the company.  The disclosure no longer has been to be raised in good faith and there has been some concern raised that this will encourage disgruntled employees to raise disclosures in bad faith.  This cannot be prevented, although a tribunal might impose financial penalties if it finds that a disclosure has been made in bad faith. 

It is essential the company has robust procedures in place to address and resolve concerns quickly and effectively. Once the company has investigated a public interest disclosure, regardless of whether or not the disclosure had merit or was upheld, the employee must not be subjected to a detriment because of raising the disclosure. 

The company is vicariously liable for the acts of its staff.  Therefore employees should be instructed not to treat the Whistleblower differently.  This does not mean that the employee automatically gains a trump card preventing any future disciplinary action or can never be made redundant.  The employee is simply protected from the company taking any action as a direct result of the disclosure.  There is nothing to prevent a company from fairly dismissing an employee in the future if it was found that they had committed an act of gross misconduct which was not related to the disclosure, or if their position became redundant.

Length of service

Since the government increased the qualifying length of service for employees to bring ordinary unfair dismissal claims from one year to two years service, there is concern that more employees will seek to rely on the protection afforded to whistleblowers in order to bring a claim to the employment tribunal.  Whistleblowers do not need any qualifying length of service to present a claim for unfair dismissal.   Therefore, it is important that when terminating an individual’s contract, the reasons are fully documented so that the company can demonstrate that there is no link between the dismissal and any previous public interest disclosure.

Hauliers can best protect themselves from claims by ensuring that they have a whistleblowing Policy in place which is effectively communicated to all staff and that managers are fully trained to deal with whistleblowing complaints.

 

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.