Whistleblowers have an important role to play in ensuring that businesses and other organisations treat their employees fairly and do not break the rules. With numerous changes being introduced to cope with the pandemic and a multitude of new safety rules to comply with, there has been a dramatic increase in COVID-19 whistleblowing complaints.

Wrongdoing that can be reported by a whistleblower includes:

• criminal activity
• endangering of health and safety
• other forms of law breaking

A definition of whistleblowing can be seen in our employment law glossary.

Whistleblowing on health and safety grounds during a pandemic

Almost every aspect of working life has been affected by the coronavirus outbreak including travel arrangements, the set-up of the workplace and how many people can be present at once.

Government guidelines must be adhered to by employers. They cannot ask their employees to work without the right protections in place. This may include masks and other personal protective equipment, hygiene facilities, adequate cleaning and the ability to socially distance from both colleagues and the public.

As businesses and other organisations struggle to survive in difficult times, health and safety regulations may be overlooked, either inadvertently or deliberately. Pressure may be put upon employees not to speak out, particularly where a business is suffering due to economic hardship. However, it is not legal for employers to ask people to put aside their health and safety.

How to make a whistleblowing complaint

For a claim to be classed as whistleblowing, it needs to be a ‘protected disclosure’. This is the disclosure of information that came to your notice in the course of your work, and which you reasonably believe shows wrongdoing because of a failure on the part of your employer.

It must also be something which is in the public interest and not anything being pursued for personal gain. In the context of COVID-19, health and safety is obviously a matter of public interest. The wellbeing of employees and the public is at stake.

Follow your organisation’s whistleblowing procedure

Ideally, the complaint should be put in writing. If there is no set procedure, a report should be made to your immediate/line manager. You should only seek intervention from someone more senior if you believe your manager may be involved in the wrongdoing.

Disclosure must be made to the right person

You may be justified in going to an outside agency, such as a professional standards body, or a government minister, if you believe that attempts will be made to cover up the problem or if nothing is done to address it following your complaint. It may also be possible to disclose the information to your legal adviser. An experienced employment solicitor will be able to advise you on the correct procedure to

be followed and help ensure you do not breach the strict rules surrounding disclosure.

Provide evidence of wrongdoing

You will need to show that the organisation has acted, or is likely to act, in breach of a legal obligation. Unlawful conduct in respect of the current COVID-19 regulations could be a breach of health and safety regulations or failure in the common law duty to provide a safe place of work.

Include specific facts within the allegation

Avoid making a blanket statement which suggests general guidance has not been followed.

Some examples of specific failings include stating that workers have had to engage with the public without protective masks, or that work premises have not been adequately cleaned.

You should be prepared to provide full details of which legal obligation has been breached, how the breach has happened, when it occurred and who was involved.

Unfair treatment or dismissal of a whistleblower

A whistleblower cannot be dismissed or treated unfavourably after making a protected disclosure. This protection extends even after an individual has left the employment concerned.

Examples of unfavourable treatment could include being passed over for promotion, being given reduced hours or being provided with a poor reference upon leaving.

The employer would need to show that there was a fair reason, unrelated to the whistleblowing claim, for their conduct. If they can prove that the adverse treatment was not the cause of the ‘unfair’ treatment, then the claim may fail.

It is important to keep accurate records of:

• what happened
• which individual imposed the penalty or unfavourable treatment
• the date on which events occurred.

If the person conducting the dismissal was unaware of the whistleblowing claim, then the employer may be able to show that it has not acted unlawfully.

An employer is also considered liable for the behaviour of their employees, which means that they must prevent your colleagues from treating you unfairly following a whistleblowing allegation.

To make a claim for unfair dismissal under whistleblowing law, the whistleblower does not need to have been employed for two years and there is no limit to the potential compensation that can be awarded.

To benefit from maximum compensation, it is essential that the correct procedures are followed throughout.

Guidance for potential whistleblowers

Whistleblowing plays an important role in exposing and stopping wrongdoing. This is particularly relevant in the time of a public health crisis. Everyone must play their part in keeping themselves safe, as well as those for whom they are responsible.

If you believe you have a coronavirus whistleblowing claim or have been treated unfairly after making a complaint, our experienced employment solicitors will be able to guide you through your options. If your employer is open to negotiation, we can handle that on your behalf.

For further information, or to discuss a potential claim, get in touch with us today.