Whistleblowing: A Practical Insight for Businesses

Whistleblowing has become a recurring theme in the headlines, capturing attention with its potential to bring workplaces into the spotlight. While high profile cases often dominate the media, whistleblowing affects organisations of all sizes, from national healthcare providers to independent retailers and charities. Recent legal developments underscore an increasing focus on transparency, accountability and robust protection for those exposing wrongdoing.

A series of recent pivotal Employment Tribunal decisions have reshaped the legal landscape, making it essential for businesses to remain proactive and informed. At Boardside Law, we regularly represent both businesses and senior executives in whistleblowing disputes. Having participated in three different Tribunal Hearings focussing on whistleblowing during the last month, as well as fielding a growing number of complex client queries in this area, we would like to share some actionable insights to help you navigate this evolving area of law. 

The Government’s increasingly strict approach in relation to whistleblowing incidents

In a recent press release, the Department of Health and Social Care has pledged to adopt a strict approach in relation to NHS managers who try to silence whistleblowers. The Secretary of State, Wes Streeting MP, launched a public consultation (with effect from 26 November 2024) with regard to government proposals to ensure that health service managers follow professional standards and are held to account, especially in cases which endanger patients’ lives through misconduct. In serious cases, it is proposed that NHS managers could be barred from practising.

The changes are designed to, ‘tackle a culture of cover up’ and to ‘ensure patient safety is at the heart of leadership in an NHS fit for the future’.  Whilst the consultation relates to health and social care setting, the general emphasis reinforces the importance of transparency, accountability and professionalism in the workplace generally, in all sectors and at all levels. 

Key messages from recent case law:

1. Reduce business risk by taking all complaints seriously (even those that at first sight might seem minor). Ignoring or dismissing complaints (even from external candidates) can lead to reputational risk, financial implications (the cost of having to respond to a Tribunal claim) and operational disruption.

In Sullivan v Isle of Wight Council ([2024] EAT3), the Employment Tribunal clarified that job applicants are not protected by whistleblowing legislation, unless specific circumstances apply (for example, if the individual has a contractual obligation to perform work for the employer, or certain NHS roles). In this case, Ms Sullivan, a rejected job applicant, later alleged financial misconduct by one of her interviewers. When the Isle of Wight Council denied her a right of appeal regarding her complaint, she claimed this amounted to detrimental treatment linked to her protected disclosure. The Tribunal dismissed her claim, ruling that she did not fall under the extended definition of ‘worker’, which includes: (i) those who have, or had, a contract of employment or a contract under which they are personally required to work for the employer (external job applicants do not have such a contract); (ii) non-employees undergoing training; (iii) certain self-employed health practitioners and agency workers. This case demonstrates the limited scope of current legislation, but it also draws attention to the important question of who is legally entitled to protection under the Employment Rights Act 1996.

2. Beware of an ingrained culture of negativity or resentment towards whistleblowers, which can expose employers to liability. Proactively addressing negative attitudes or comments about whistleblowers (especially after disclosure are resolved) can help to avoid long-term consequences.

The case of First Greater Western Ltd -v- Moussa ([2024] EAT82) raises important considerations for employers regarding the treatment of workers who have made protected disclosures, even years earlier. In this case, the claimant, Mr Moussa, alleged that his employer and two individuals had subjected him to an unfair disciplinary process, amounting to a detriment, related to protected disclosures he had made six years previously. Whilst these disclosures had been resolved, Mr Moussa claimed that they had left a residual ‘ill-will’ within the organisation. 

The Tribunal and Employment Appeal Tribunal (EAT) ruled that the individuals involved in the disciplinary process had not conducted the disciplinary process because of the past disclosures, but they had been influenced because the organisation retained a collective memory of ill-will, which affected the disciplinary process. This was imputed to the company, establishing vicarious liability for the detriment suffered by the claimant.

3. Remember that complaints about harassment or mistreatment of others may qualify as protected disclosures, which afford legal protection against retaliatory action. It is critical to handle such reports with care and ensure that your organisation has appropriate mechanisms in place to support whistleblowers and address concerns effectively.

The question of whether an employee can make a whistleblowing claim after reporting the bullying or harassment of others was addressed in the case of Mysakowski v Broxburn Bottlers Ltd (8000379/2023). In this case, Mr Mysakowski reported witnessing a manager engaging in inappropriate conduct towards a junior employee. After his dismissal, Mr Mysakowski alleged that his protected disclosure (reporting potential sexual harassment) was the reason for the termination of his employment. The Tribunal found that the Claimant had reported potential violations under the Equality Act 2010, and his actions were deemed to be in the public interest, as he sought to protect his colleagues from possible harassment, such that he was protected by the whistleblowing legislation. 

Action Points for Employers

To reduce exposure to legal risks, organisations should:

• revise whistleblowing policies to ensure clarity and accessibility;
• promote a speak-up culture, making employees feel safe reporting concerns without fear of reprisal. Establishing a safe environment, treating all complaints with care, and documenting responses comprehensively, can help to prevent a case such as Mysakowski -v- Broxburn Bottlers Ltd;
• partner with external reporting services for confidential handling of disclosures;
• train managers and staff on whistleblowing rights and employer responsibilities to avoid inadvertent breaches. Equipping managers with training on whistleblowing protection and fostering an inclusive environment where employees feel safe to report concerns can help to prevent a case such as First Greater Western Ltd -v- Moussa.

Whistleblowing protections are broader than they may at first appear. Employers should seek legal advice when handling sensitive matters, in particular in relation to disciplinary and grievance issues, to ensure compliance with evolving case law. As whistleblowing reform progresses, Boardside Law can provide tailored guidance to help your organisation navigate these changes and mitigate risk effectively.