If you know or strongly suspect something is occurring at work that is unethical or illegal, and you feel that you must speak up, the law can provide protection. But what happens if a disclosure made by a whistleblower turns out to be incorrect?

The law in respect of whistleblowers

As a whistleblower you’re protected from victimisation or being dismissed if you are:

• a worker
• revealing information of the right type, by making what is known as a ‘qualifying disclosure’
• revealing it to the right person and in the right way, making it a ‘protected disclosure’.

Worker has a broad meaning in these circumstances. It includes:

• employees,
• agency workers
• people who are not employed but are in training.

Dismissal for whistleblowing is automatically unfair. An employee does not need to have two years’ continuity of service to bring a claim.

Qualifying disclosures

To make a qualifying disclosure, you must reasonably believe that the disclosure is in the public interest and that malpractice has happened, is happening or is going to happen at work.

It is likely to be a qualifying disclosure if it involves:

• a criminal offence,
• failure to comply with a legal obligation,
• threats to people’s health and safety,
• damage to the environment,
• a deliberate attempt to cover up any of these.

The wrongdoing you disclose must be about something that affects others, for example the general public.

If the disclosure is of a personal nature, such as a bullying complaint, it will not count as whistleblowing.

Making a disclosure

There is no legal requirement for employers to have a whistleblowing policy, but it is recommended and considered good practice.

In an ideal world, a whistleblower should be aware of who they need to speak to about a whistleblowing disclosure, and what will happen when they make a disclosure.

A whistleblower can request to be kept anonymous but this makes it harder for the employer to provide feedback about the complaint. It may also make it harder for the employee to claim protection from dismissal, should the need arise.

Ideally, when a whistleblowing complaint is raised, there should be a fair and thorough investigation. If appropriate, the whistleblower will be kept informed of the outcome of the investigation.

If, following a proper investigation, it is established there was no wrongdoing, the whistleblower can be informed and the matter can end there.

What happens if a whistleblower is wrong?

It is important to bear in mind that a worker only has to have a reasonable belief that wrongdoing has happened. They do not have to provide proof and will still be protected from victimisation and dismissal, even if it turns out they are mistaken.

A couple of things could happen in the event a whistleblowing allegation is found to be incorrect.

The whistleblower had a genuine belief

There should be no further action against the whistleblower if their accusation was founded on a reasonable cause.

If the whistleblower did have a reasonable but erroneous belief in the wrongdoing, and as a result they are dismissed by their employer, then they would potentially have a claim for unfair dismissal regardless of how long they’ve worked for their employer.

The whistleblowing was in bad faith

If the employee did not have a reasonable belief in respect of the wrongdoing, further action may be taken. However, this will depend on the parties involved and what they decide to do.

If, following an investigation, an employer decides the whistleblowing was deliberately false or made in bad faith (e.g. out of spite or for personal gain) they could decide to take disciplinary action against the employee.

Depending on the nature and extent of the erroneous claim, other affected parties could also bring a civil claim against the individual. However, this is likely to be very rare.

What action is taken is likely to be determined by the seriousness of the allegation and the impact (if any) it had on others, in terms of damage to reputation or financial damage.

Worried about getting it wrong?

Those who have a genuine and reasonable belief should never be discouraged from raising their concerns and should be reassured that the law will protect them.

Employers should make sure they have an appropriate whistleblowing procedure, which their employees and workers are familiar with. Those with responsibilities under internal policy must be well trained.

If you would like further advice about making a whistleblowing allegation or about an allegation you believe to be wrong, our experienced team of employment law solicitors is ready to assist you. Get in touch today via our website or over the phone for an initial consultation.