The recent Employment Tribunal judgment in the case of Dr Susan Gilby vs. the Countess of Chester Hospital NHS Foundation Trust and Mr Ian Haythornthwaite provides a significant backdrop for understanding the complexities of making protected disclosures (commonly referred to as whistleblowing). Whistleblowing is an essential mechanism for maintaining transparency and accountability in the workplace. However, navigating the process can be daunting. This article outlines the key steps and considerations for whistleblowers, drawing on legal principles and practical advice to empower individuals to navigate this challenging process effectively.
What is a protected disclosure?
Under the Employment Rights Act 1996, a protected disclosure is any disclosure of information which, in the reasonable belief of the person making the disclosure, is made in the public interest and tends to show wrongdoing such as a criminal offence, the breach of legal obligations, a miscarriage of justice, health and safety risks and environmental damage, for example.
When should you make a protected disclosure?
Timing is crucial when making a protected disclosure. Whistleblowers should act promptly once they identify wrongdoing but ensure they have sufficient evidence to support their claims. Delays may weaken credibility, lead to missed legal deadlines and result in crucial evidence being lost or tampered with.
In Dr Gilby’s case, her disclosures spanned several months and were made at various points when she identified issues such as breaches of legal obligations and risks to the health and safety of employees.
What should you say when making a protected disclosure?
When making a disclosure, it is essential to be clear, concise, and factual. Whistleblowers should:
- Identify specific issues: Clearly outline what wrongdoing has occurred, providing factual details such as dates, locations, and individuals involved.
- Explain why the disclosure is in the public interest: Demonstrate how the issue affects others beyond personal grievances.
- Provide evidence: Attach any supporting documents that substantiate your claims.
For example, Dr Gilby made multiple disclosures through emails and meetings with senior colleagues, detailing specific instances of alleged misconduct while emphasising their broader implications for public health and governance.
How should I gather evidence?
Evidence is the cornerstone of any protected disclosure. Whistleblowers should:
- Document events: Keep a detailed record of incidents, including times, dates, and participants.
- Preserve communications: Save emails, text messages, or other correspondence related to the issue.
- Identify potential witnesses: Give thought as to which individuals may corroborate your disclosures.
- Avoid breaking data protection laws and duties of confidentiality: Ensure that evidence is obtained legally without breaching data protection regulations or confidentiality agreements.
In Dr Gilby’s case, her ability to provide evidence was hindered by deletions of emails and other materials by her employer. This underscores the importance of safeguarding evidence early in the process.
What does your company policy say?
Before making a disclosure, whistleblowers should review their employer’s whistleblowing policy (if available). These policies often outline:
- The internal process for raising concerns (including the process for investigating the disclosure);
- Designated individuals or departments to contact; and
- The protections offered to whistleblowers.
If a policy isn’t available, you should still report your concern to your employer. Alternatively, a legal adviser can advise you on who to make the disclosure to if you feel it is not appropriate to make it to your employer. Employers are encouraged to have clear whistleblowing procedures in place.
Understanding these policies and following these steps can provide an added layer of protection and help whistleblowers navigate internal reporting mechanisms before escalating matters externally
Key takeaways
Making a protected disclosure is a serious decision that requires careful planning and execution. Whistleblowers should:
- Act promptly but ensure they have sufficient evidence;
- Clearly articulate their concerns;
- Follow company policies where possible; and
- Seek legal advice before escalating matters externally.
The judgment in Dr Gilby’s case serves as a reminder of both the challenges faced by whistleblowers and the legal protections available to them. By adhering to best practices and understanding their rights, individuals can help expose wrongdoing while safeguarding their own professional futures.
If you believe you need to blow the whistle or feel you have been subject to any detriment as a result of raising concerns, please feel free to contact me at robyn.barron@arch.law.
Arch Law’s press release on Dr Gilby’s case can be found here: Countess of Chester NHS Trust agrees £1.4m settlement with former Chief Executive following tribunal ruling
