Follow up

Whistleblowing

[Form]

Grievance

[Procedure]

Whistleblowing

[Policy]

Acknowledging whistleblowing disclosure

[Letter]

Grievances and protected whistleblowing disclosures

Definitions

Although there’s no statutory definition of grievances, the Acas Code of Practice on Disciplinary and Grievance Procedures describes them broadly as “concerns, problems or complaints that employees raise with their employer” . Protected disclosures are more tightly defined in the Employment Rights Act 1996 as disclosures of information made by an employee (or worker) which, in their reasonable belief, are both in the public interest and tend to show one or more of the following is either currently happening, took place in the past or is likely to happen in the future: (1) a criminal offence; (2)  a breach of a legal obligation; (3) a miscarriage of justice; (4) a risk to someone’s health or safety; (5)  environmental damage; and/or (6) the deliberate concealment of information tending to show any of the above.

Pro advice. It doesn’t matter that the employee hasn’t used this precise terminology, and they don’t even need to have labelled their grievance as “whistleblowing” . The protected disclosure could also be made in writing or verbally.

Pro advice. Making a whistleblowing form available (see Follow up ) may ensure employees are clear about whether they’re intending to raise a grievance or make a protected disclosure.

Public interest test

As the employee must reasonably believe their disclosure is “ in the public interest” , it won’t include a grievance about an issue that only affects that individual personally and doesn’t have a wider public interest. For example, a grievance about a breach of their own employment contract or a complaint that they are being bullied. Conversely, if the employee’s grievance is concerned about wrongdoing at work more generally and which it’s in the wider public interest to raise, such as allegations about workplace health and safety failures (including COVID-19 safety measures), that’s likely to amount to a protected disclosure.

Pro advice. Whistleblowing disclosures aren’t always easy to identify, so don’t get too tied up about whether a grievance also constitutes a protected disclosure. The important thing is to take all complaints about alleged wrongdoing seriously, investigate them properly and promptly and then, if necessary, take steps to address the problem.

Pro advice. As for whether to invoke your grievance procedure (see Follow up ) or whistleblowing policy (see Follow up ) where an employee raises a grievance that could constitute a protected disclosure, it doesn’t really matter which you use, because the whistleblowing regime isn’t about how you investigate the issue but about whether you improperly retaliate against the employee for making the disclosure. Protected whistleblowers have the right not to be subjected to a detriment for having made a protected disclosure, even if it turns out not to be true, and any dismissal for this reason is automatically unfair, regardless of their length of service. If you don’t retaliate in any way the distinction between a personal grievance and a protected disclosure isn’t really that relevant.

Pro advice. If you do invoke your whistleblowing policy where a grievance has been raised (see Follow up ), ensure you still comply with the principles laid down in the Acas Code .

Pro advice. You can still performance manage or discipline an employee who’s made a protected disclosure, provided any action taken is for reasons completely unrelated to that disclosure. Document your reasons for such action and ensure you have supporting evidence.

Whistleblowing form

Grievance procedure

Whistleblowing policy

Letter acknowledging whistleblowing disclosure