Health and Safety Whistleblowing

28 March 2017

There may come a time at work when you notice that the health or safety of someone has been, is being or is likely to be endangered by the actions (or lack of action) by your employer.

If you report malpractice by your employer, you may be making a disclosure which is protected by the law. This is known as a Protected Disclosure or, more commonly, as Whistleblowing.

The law in England & Wales says that when someone makes a disclosure about a breach of health and safety regulations, they are to be protected from victimisation or even dismissal from work.

When is a Disclosure Protected?

The information you disclose must be facts about the issue, and the subject matter must be one of certain specified types of allegation of wrongdoing. Along with health and safety concerns, these might include criminal offences, breaches of legal obligations, miscarriages of justice and damage to the environment. You will need to show that the information you are disclosing shows that the alleged wrongdoing has occurred, is occurring or is likely to occur.

After an update to the law in 2013, you must now reasonably believe that any whistleblowing you are making is in the public interest. This means that you may not be protected by whistleblowing if the disclosure you make is only about your own private affairs and does not affect anyone else.

Whistleblowing Procedure - Who Can I Tell?

The usual whistleblowing procedure would be to make the disclosure directly to your employer. You should check your employer’s staff handbook or internal policies for any mention of a whistleblowing policy. If you have such a policy, you should follow it to make sure you are informing the correct person. In the event that your employer doesn’t have a whistleblowing policy, it’s often best to make the disclosure to a senior worker who has authority over you; your line manager, for example.

You may also be able to make the disclosure to a Prescribed Person outside your employment. Where you believe there may be health and safety concerns in your working environment, prescribed persons would include the Health and Safety Executive, together with the department of your Local Authority that is responsible for the enforcement of health and safety at work.

There may be situations in which you can make your disclosure to the wider public, such as the press. The conditions of making a disclosure in this way are limited and much harder to satisfy. You must either have previously disclosed the information to your employer (or a prescribed person), reasonably believe you will be subjected to a detriment, or reasonably believe that the evidence of the disclosure will be concealed or destroyed if you do so. You must not be making the disclosure for any personal gain and it must be reasonable for you to make the disclosure to that person in the circumstances.

What Protection Do Whistleblowers Have?

If you do find yourself in a position where you have made a protected disclosure (blown the whistle), you are protected from being unfairly dismissed or subjected to detriment by your employer. You are also protected from being subjected to detriment by any of your co-workers, as your employer can be liable for the acts or omissions of their workers in such circumstances.

Claim for Unfavourable Treatment

You can bring a claim for any of the unfavourable treatment above, no matter how long you have been working for your employer. However, to be successful in an unfavourable treatment claim you will need to show that the treatment you have suffered is as a direct result of the disclosure/s you have made.

If you have discovered something at work which you believe puts the health and safety of others at risk, or if you have already made a disclosure and have suffered a detriment from your employer as a result, you should get legal advice as soon as possible.

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