Whistleblowing: a disclosure culture in the workplace?

A recent Employment Appeal Tribunal case considered the circumstances in which a failure to act could be seen as 'subjecting' a whistleblowing employee to a detriment. Bettina Rigg analyses the case.

In order to make a successful whistleblowing claim a worker needs to show that they were "subjected to" a detriment because of their status as a whistleblower; either by their employer or another worker in the course of that other worker's employment.

An employer can be liable for the deliberate acts of its employees or a deliberate failure to act (for example, a deliberate failure to prevent others from subjecting the whistleblower to a detriment).

In Abertawe Bro Morgannwg University Health Board v Ferguson, Dr Ferguson, a GP, who was a partner in general practice, disclosed to the relevant Health Board with whom she contracted that one of her fellow partners had been prescribing Fentanyl wrongly.

She claimed that the relevant Health Board had "subjected her to" a number of detriments as a result of this disclosure in the way that it had acted and failed to act. The case raised issues about when a failure to act can be seen as "subjecting" an employee to a detriment.

The Employment Appeal Tribunal stated that a deliberate failure to act presupposed a power to act. Therefore, to succeed, Dr Ferguson would need to show that the Health Board had chosen not to act where it could have. Also, the reason why it did not take action was because of the fact that she made a protected disclosure (ie she was a whistleblower). It is therefore clear that the employer does not need to be obliged, under statute or contract, to take action and fail to do so to fall within the whistleblowing provisions, it simply needs to have the power to act and choose not to.

Best practice

This case was only to decide whether or not the case should be struck out before hearing the full evidence but, it is interesting due to what it says about the meaning of "subjected to" and causation.

Furthermore, the case is interesting because the law on whistleblowing has been changed since the decision, with the addition of vicarious liability provisions which holds an employer liable for detriments caused by fellow workers/employers of the whistleblower. The Health Board's main defence to the action (that they could not be liable for the actions of Dr Ferguson's fellow partners) would, under the new law, fall away.

Employers need to be mindful of the fact that, under the new law, they will need to successfully demonstrate that they have taken "all reasonable steps" to prevent the detrimental treatment of a whistleblower by his colleagues. Whilst there is no definition of "all reasonable steps", what is clear is that it has become increasingly difficult for employers to escape liability.

Employers should actively ensure that they best protect their position by having the appropriate policies and procedures in place which support prompt identification of a "protected disclosure", as well as monitoring of behaviour and firm action in response to any detrimental treatment.

This could become increasingly important as the Government is currently consulting on further changes to the law on whistleblowing with a clear aim of encouraging a disclosure culture in the workplace, and increased protection for whistleblowers.

Bettina Rigg is a partner at Veale Wasbrough Vizards. She can be contacted on 0207 665 0960 or by This email address is being protected from spambots. You need JavaScript enabled to view it..