Whistleblowing claims have a funny way of sneaking up on employers. When an employee makes a complaint or raises a grievance, the legal risk is sometimes obvious at the start. But it can often catch an employer by surprise late in the process. Understanding (at least at a high level) the legal standards for whistleblowing claims in the different jurisdictions in which your company operates is critical to managing this risk.
As an example, the UK law on whistleblowing in the workplace was amended in 2013 to raise the bar for employees seeking to bring claims. Since the amendments came into effect, employees must now demonstrate that they had a reasonable belief that their disclosures were made “in the public interest.” Previously, a claim by an employee about a breach of his or her own employment contract could form the basis for a whistleblowing claim even if it did not affect the public more generally.
Although the 2013 change in the UK law gave some comfort to employers that their exposure to claims would be more limited, a recent UK Court of Appeal decision held that a personal motivation to make a disclosure (in that case, a complaint about accounting practices that affected the employee’s commission payments) could be regarded as being in the public interest because of the number of employees affected, the amount of money involved, and the deliberateness of the employer’s wrongdoing.
Employers need to watch out and try to spot the risks early in the process so they can be handled appropriately, particularly in relation to employees who are also facing a disciplinary action or termination of employment. The legal standards differ between jurisdictions and are ever-changing. Making sure that in-house counsel, the HR team, and management-level employees stay up-to-date and trained to identify the risks remains as important as ever.