Legal advice: Whistleblowing close to home

To most of us the image of a 'whistleblower' is probably quite grand. We think of employees who are taking great risk to expose the wrongdoings of their employers such as Clive Pontin (of GCHQ) or matters best left to the News of the World.

So it is often a shock for employers to be told that the legislation protecting whistleblowers, which has now been around for almost nine years, is also there to protect ordinary employees in ordinary jobs; from barstaff to kitchen staff, and cleaners to bookkeepers.

It is also alarming to note that this is an area which lawyers are pressing hard to develop against employers for one major reason. Simply put - cash.

Although the maximum compensatory award for unfair dismissal is already high (now £60,600), if the dismissal came about because the staff member 'blew the whistle' there would be no limit at all on potential compensation. Equally, the required minimum service period of one year, usually required to bring an unfair dismissal case would not be needed. In short, a failure to recognise a potential claim could be an expensive business.

This is especially so as claimants have pressed to develop our understanding of what amounts to a 'protected disclosure'.

In essence, the law now contained in the amended Employment Rights Act 1996, is simple. Where an employee makes a 'qualifying disclosure' to their employer, they are protected from being dismissed or being penalised because they have done so.

In most cases qualifying disclosures will be quite obvious, for example, the health and safety of someone has been endangered or a criminal offence has been committed. The difficulty is that the law may also protect disclosures based on the employer's failure to "comply with any legal obligation to which he is subject".

This has been argued to include a failure by an employer to comply with provisions of the worker's own employment contract - a standard feature of most grievances - although the jury is still out on this. Few in business would recognise this as 'whistleblowing' and yet if the complaint led to dismissal (an 'if you feel like that you may as well leave now' dismissal) an employer can expect the argument to at least be considered if not raised by the employee in any litigation. This is especially so if the employee has less than the one year's service needed to bring a 'normal' claim.

There could be few areas more vulnerable to such an attack therefore than the licensed and hospitality trade. Alongside all the usual employer/employee issues that could be raised as protected disclosures, the emphasis on health and safety within the trade brings clear potential for problems.

Surely few, if any, licensees would ignore or criticise a genuine concern about health and safety standards raised by one of their staff, but would a protected disclosure always be so obvious? After all, there can't be many employees who have been dismissed who cannot recall having previously raised some complaint or other about their working conditions or contract terms.

And, if the employer doesn't agree with the complaint he may think little more of it until he simply decides to get rid of the employee a few weeks later and finds the matter brought to light.

Of greater concern again, the whistleblowing provisions also protect employees from making good faith disclosures to third parties - the police or trading standards, though usually not the press - where they believe, for example, that they may suffer a detriment if they raise it direct with the employer.

If they have failed to put a 'whistleblower' policy in place, this could put the employer in the difficult position of having the cat out of the bag before it can rectify the problem.

So what can be done? First, prepare a simple whistleblowing policy to minimise the risk of your dirty laundry being raised with the outside world. Secondly, always consider the complaints raised by your staff through as formal a process as possible to ensure that they are dealt with sensibly.

Finally, be aware that complaints raised may amount to whistleblowing under the Act and ensure you do not penalise even the most irritating of employees for raising these issues.

If you do decide to remove the employee make quite sure you can show the real reason for dismissal was not the disclosure they have made.

And as always - if in doubt, seek professional advice.