Whistleblowing: Would you blow the whistle on your boss? What protections do you get?

Whistleblowing, which is effectively reporting wrongdoing at work, raises a number of things including financial, practical, legal and moral considerations.

Some people may prefer the quiet life choosing not to rock the boat unless they really have to. Others could feel that the only correct thing to do is to spill the beans.

Currently, Barclays CEO, Jes Staley, is being investigated by the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) for trying to identify a whistle blower.

Barclays has confirmed that Mr Staley will be receiving a formal written reprimand and that there will be a very significant adjustment to his variable compensation award. This case highlights the dilemma that people so often face before making disclosures. While in this case the identity of the whistle blower has not come to light – it could have done.

What protection do whistle blowers have?

The law protects whistle blowers whose employer dismisses them or subjects them to any other detriment (i.e. disadvantage) on the ground that they have made a protected disclosure. A detriment could include a number of things such as bullying, harassment or a failure to be promoted

To be a qualifying disclosure the information disclosed must, in the reasonable belief of the worker, tend to show that one or more of the following has taken place, is taking place or is likely to take place:

And the worker must also reasonably believe that the disclosure is in the public interest.

The relevant legislation, the Public Interest Disclosure Act 1998, encourages that the disclosure should be to the worker’s employer but disclosures to certain other parties may be protected if more stringent conditions are met.

Employees who feel that they have been dismissed or suffered any other detriment because they have reported wrongdoing could consider bringing a claim in the employment tribunal. There is no minimum period of service required (which is generally at least two years for unfair dismissal claims) and there is no restriction on the maximum unfair dismissal compensation award. Prior to issuing a claim the employee would be required to follow the Advisory Conciliation and Arbitration Services (Acas) early conciliation process.

Any claims must normally be filed (with the requisite fee) within three months (less a day) from when the employment ends or, where the employment is continuing, from the act or failure complained about. Where there is a series of similar acts or failures the same time limit runs from the last of them to occur. These time limits are subject to the early conciliation rules for extending time.

So, back to the question – do you tell? Provided you do not have a duty to disclose arising out of your employment or as a result of another obligation, imposed on you, for example, by a regulatory body, the choice should be yours. Factors that you might wish to consider could be: the desire to do the right thing; risk of retaliation, which may often be concealed; avoidance of any personal risk (i.e. from a regulator); damage to job prospects if you become known as a whistle blower; and risks, costs and uncertainties of pursuing a claim.

Ultimately it is a matter for you, though it would be prudent to seek advice before potentially putting the cat among the pigeons.

Matt Gingell is a specialist employment lawyer and legal commentator. He advises businesses and individuals on all employment law related issues. He also writes articles, HR guides, and employee guides.