Is it Really Whistleblowing? When a Workplace Complaint is a Personal Grievance
It is increasingly common for employees to describe a serious workplace complaint as whistleblowing. Sometimes this is legally correct. In other cases, the employee has a dispute with their employer, but the issue does not meet the legal definition of a protected disclosure.
Being treated unfairly, falling out with a manager or disagreeing with a business decision can all justify raising a complaint. They might even contribute to another employment law claim. However, they do not automatically provide protection under whistleblowing law.
To qualify as whistleblowing, you must disclose information that you reasonably believe shows a specific type of wrongdoing recognised by law. You must also reasonably believe that raising it is in the public interest. The substance of the complaint is what matters.
When is a Workplace Complaint a Personal Grievance?
A personal grievance usually concerns your own treatment, contractual terms or working relationships. You might believe that your manager has behaved unfairly, disagree with criticism of your performance, or object to a decision about promotion. These issues can significantly affect your career and income. Depending on the facts, they could also raise questions about discrimination, bullying, harassment, or unfair dismissal.
However, a complaint does not become whistleblowing simply because the conduct appears unreasonable or potentially unlawful. For example, a dispute about your own bonus will usually be a personal grievance. The position could be different if you have evidence that the organisation is deliberately manipulating bonus calculations across its workforce in breach of its legal obligations. Personal grievances are not normally covered by whistleblowing law unless the circumstances also engage the public interest.
What Specific Wrongdoing Can You Blow the Whistle About?
Whistleblowing law does not cover every form of poor management or workplace unfairness. Section 43B of the Employment Rights Act 1996 defines a qualifying disclosure as a disclosure of information which, in the reasonable belief of the worker, is made in the public interest and tends to show one or more recognised forms of wrongdoing. These include:
- A criminal offence
- A failure to comply with a legal obligation
- A miscarriage of justice
- A health or safety violation
- Sexual harassment
- Damage to the environment
- Deliberate concealment of information relating to one of these matters
For executives and senior professionals, relevant concerns might include financial misreporting, regulatory breaches, unsafe practices or attempts to conceal legal non-compliance. The alleged failure can relate to something that happened in the past, is happening now or is likely to happen in the future. The important point is that the disclosure must concern one of the statutory categories rather than a general belief that the organisation is badly managed.
What Does a ‘Disclosure of Information’ Mean?
A protected disclosure should communicate facts or information about the suspected wrongdoing. There is a difference between saying: ‘management is acting illegally’ and explaining: ‘the figures submitted to the regulator exclude liabilities recorded in the company’s internal accounts’. The second provides information about a possible legal or regulatory failure. The first is no more than a broad allegation.
You do not need to conduct an investigation or present a full case before raising a concern. However, it helps to identify what you have seen, heard or discovered and explain why it is one of the recognised forms of wrongdoing. Try to distinguish clearly between the facts and what you suspect. This can reduce the risk of the concern getting lost in a wider dispute.
Why Does ‘Public Interest’ Matter?
The public interest requirement is often the clearest dividing line between whistleblowing and a personal grievance. You must reasonably believe that raising concerns about wrongdoing serves an interest wider than your own. The issue does not need to affect the whole country or a large number of people; often, it only concerns colleagues, customers, investors, or patients, and this is enough for whistleblowing.
For example, a complaint that your own commission has been underpaid is likely to be personal. Evidence that the organisation is deliberately underpaying commission across an entire sales team may involve a wider failure to meet legal obligations. The seriousness of the alleged wrongdoing is also relevant. A significant financial, regulatory or safety failure affecting a small group can potentially satisfy the test.
Can a Personal Grievance also Contain Whistleblowing?
The two are not mutually exclusive. You might complain that you were removed from an important project. On its own, that is a personal grievance; however, if you were removed after refusing to approve misleading information intended for clients or a regulator, that could amount to a qualifying disclosure.
The employer will then need to consider the wider wrongdoing separately from your complaint about how you were treated. It will also need to avoid subjecting you to detriment because you raised the concern. Setting out the two elements separately can help prevent the disclosure from being dismissed as an interpersonal dispute. It also creates a clearer record of what was reported and what happened afterwards.
Do You Need to Prove that Wrongdoing Happened?
You do not need to prove that the suspected wrongdoing ultimately occurred. The question is whether you reasonably believed it to be true and that raising it was in the public interest. A disclosure may remain protected even if an investigation later finds that you were mistaken.
There is a difference between an honest, but mistaken concern and an accusation made without a reasonable factual foundation. You should explain the information behind your concern of wrongdoing rather than presenting assumptions as established fact.
Does Having a Personal Motive Prevent Protection?
Good faith is no longer a requirement for a disclosure to qualify for whistleblowing protection, and you may have mixed motives. For instance, you might want to prevent wrongdoing while also feeling angry about the way your employer has treated you. An employer cannot defeat a claim simply by arguing that you held a grudge or had fallen out with management.
However, motive can still affect compensation awarded in whistleblowing claims. If a tribunal finds that a protected disclosure was not made in good faith, it may reduce compensation by up to 25%. Keeping the disclosure factual and focused can help. Explain the suspected wrongdoing, the information supporting your concern and who may be affected, rather than including unnecessary personal allegations.
What Protection Does a Whistleblower Have?
Whistleblowing protection applies when you make a protected disclosure that is raised through an appropriate route. Your employer must not subject you to any detriment because you spoke up. This means treatment that places you at a disadvantage, such as removing responsibilities, denying a bonus, excluding you from meetings, or giving an unfavourable reference.
Detrimental treatment does not have to cause a financial loss, but there must be a connection between the disclosure and what happened afterwards. Employers can still take legitimate action for unrelated reasons, including genuine performance concerns.
If an employee is dismissed because of a protected disclosure, they may bring an automatic unfair dismissal claim. No minimum length of service is required, and the usual cap on ordinary unfair dismissal compensation does not apply. Keep a clear record of the disclosure, the response and any later changes in your treatment to support your claim.
Differentiating Whistleblowing and Personal Grievances
Not every serious workplace complaint amounts to whistleblowing. Being treated unfairly by your employer might justify a grievance or another employment law claim. Whistleblowing protection only applies when you disclose information that shows a recognised form of wrongdoing, is in the public interest and is made through a legally protected route.
Damian McCarthy advises executives, senior professionals and other workers on grievances, protected disclosures, whistleblowing detriment and unfair dismissal. He can help you identify the relevant legal issues, decide how to raise your concerns and respond if your employer treats you unfavourably afterwards. If you are unsure whether your concern is legally protected whistleblowing or a personal workplace complaint, get in touch with Damian today.
