Legal
Plan for speaking out
A government plan to review whistleblower regulations is likely to mean more employers will face employees raising allegations and claiming compensation if they fail to be protected says Lee Ashwood
W
histleblowing has been hitting the headlines in recent months and the rail industry should take
note, because it’s in the public eye, affects public health, is heavily regulated and has high standards of health and safety. A good example is how hospitals have been hit by scandals following staff raising concerns publicly about the standards of care and management. Those who do ‘blow the whistle’ can be protected by legislation from reprisal from their colleagues and their employer. The legislation also entitles whistleblowers to bring employment tribunal claims alleging they have suffered reprisals as a result and, if the tribunal finds that to be the case, the court may order the employer to pay compensation to the whistleblower. Under the UK’s current, complex legislation, an employee who raises an allegation of a certain type of malpractice can be protected. The types of malpractice the law concerns itself with include allegations of damage to the environment, the health and safety of anyone (e.g. a
colleague or member of the public) being endangered, or a breach of any legal obligation such as a piece of industry regulation. While the allegation needs to be in the public interest for the employee to be protected, it does not need to be true, the employee only has to reasonably believe it is true. Also, the allegation can relate to past, current or future incidents or say that information about the malpractice is being deliberately concealed. As a result, whistleblowers often are afforded protection by the legislation.
The protection afforded to a whistleblower results from being subjected to any detriment (such as verbal abuse or being overlooked for promotion) by their colleagues or employer or being dismissed because they spoke out. If an employment tribunal finds either to be the case, the employer can be ordered to pay the whistleblower compensation for any loss of salary and/or any injury to their feelings as a result.
Given the legislation and the risk of compensation being awarded, many employers have whistleblowing policies which usually set out how an employee
should raise any concerns and reassures them they will be protected from a detriment or dismissal if they do.
Employees increasingly aware Employees are becoming increasingly aware of what whistleblowing is and of their right to protection. The government has issued a call for evidence to enable it to assess whether current legislation goes far enough to protect whistleblowers. Public Concern at Work (a whistleblowing support charity) has started to campaign for more to be done to protect whistleblowers. It has also produced a code of practice and is campaigning for it to become mandatory for employers to adopt it. Public Concern at Work’s other recommendations include tightening the law in respect of so called ‘gagging clauses’ in order to prohibit any attempt to suppress whistleblowing either before, during or after employment. As a consequence of Public at Work’s recommendations and the government’s plans to review the legislation, it is expected that more employers will be confronted by employees raising allegations they believe amount to whistleblowing and bringing employment tribunal claims for compensation for failing to be protected.
What does it mean for rail? As an industry which deals with the pressures of cost cutting and reductions in employee numbers while maintaining high standards of service, the rail industry often finds itself the subject of high- profile concerns raised by trade unions. Unions, in order to highlight the value of the service provided by their members to their employers, are quick to publicise any perceived risks they believe are a threat to public health and safety, in the hope that this will persuade employers that the proposed cuts should not be made.
One very recent example of this relates to the Mayor of London’s proposals to cut costs on the London Underground by reducing employee numbers, which was announced at the same time as plans to introduce round-the-clock services at weekends. Perhaps as anticipated, this
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