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What Can an Employee Actually Whistleblow About?

Whistleblowing is one of those terms that is often used quite broadly in the workplace.

An employee might say they are “whistleblowing” when they are unhappy with how they have been treated, disagree with a management decision or want to raise concerns about something their manager has done.

Those concerns may be completely legitimate and may need to be investigated, but that does not necessarily make them whistleblowing. In UK employment law, whistleblowing has a particular meaning and carries specific legal protections.

One of the most important things for managers to understand is the difference between whistleblowing and a grievance. The two can sometimes overlap, but they are not simply different names for the same type of complaint.

What Is the Difference Between a Grievance and Whistleblowing?

The simplest starting point is to consider the nature of the concern. A grievance will generally relate to something affecting the employee personally in connection with their employment. They might believe their manager is treating them unfairly, complain that they are being bullied, challenge how a workplace process has been handled or raise concerns about a decision that directly affects them.

Whistleblowing is different. Broadly, it involves a worker disclosing information about certain types of wrongdoing which they reasonably believe is in the public interest. Rather than simply being dissatisfied with their own treatment, they are raising information about wrongdoing that has wider implications.

For example, an employee saying that their manager has unfairly criticised their performance would usually be raising a personal employment concern through their company’s grievance procedure. An employee saying that their manager is instructing staff to falsify mandatory safety records is potentially raising something very different and would be reported through the organisation’s whistleblowing procedure.

A useful way of thinking about the distinction is that a grievance will often be “something has happened to me at work”, whereas whistleblowing is more likely to be “I have information about wrongdoing that affects, or could affect, others or the wider public interest.”

However, this is only a starting point. A concern can affect an employee personally and still potentially amount to whistleblowing if the requirements for a protected disclosure are met.

What Is Whistleblowing?

Whistleblowing is when a worker reports certain types of wrongdoing that they have become aware of through their work. In legal terms, this is known as making a protected disclosure, provided the requirements for whistleblowing protection are met.

A protected disclosure must involve information that the worker reasonably believes shows that a particular type of wrongdoing has happened, is happening or is likely to happen. They must also reasonably believe that raising the concern is in the public interest.

This is what separates whistleblowing from many ordinary workplace complaints. An employee who believes they have personally been treated unfairly will usually be raising a grievance. Whistleblowing is concerned with specific types of wrongdoing that have a wider public-interest element, although there can be situations where a complaint contains both.

The employee does not have to prove that the wrongdoing has actually happened before raising it. If they have a reasonable belief based on the information available to them, the disclosure may still be protected even if an investigation later finds that their concern was mistaken.

What Can an Employee Whistleblow About?

The law sets out the types of wrongdoing that can form the basis of a protected disclosure. These are:

• a criminal offence

• a failure to comply with a legal obligation

• a miscarriage of justice

• a danger to someone's health or safety

• damage to the environment

• the deliberate concealment of information about any of these matters.

The concern can relate to something that has already happened, something that is currently happening or something the worker reasonably believes is likely to happen.

For example, an employee who discovers that safety records are deliberately being falsified may potentially be raising a whistleblowing concern. An employee who believes their manager was unfair when refusing their annual leave request is much more likely to be raising a personal employment complaint. That doesn't make the second concern unimportant. It simply means it should usually be dealt with through a different process.

What Does “In the Public Interest” Mean?

For a disclosure to receive whistleblowing protection, the worker must reasonably believe that raising the concern is in the public interest. This does not mean the issue has to affect the whole country, the general public or a large number of people. A concern within a single workplace can still have a public-interest element.

The important distinction is between raising concerns about wider wrongdoing and using whistleblowing legislation simply to pursue a personal employment dispute.

For example, an employee complaining that they alone have been underpaid may primarily have an individual employment complaint. If they disclose information suggesting that an employer is deliberately and unlawfully underpaying an entire group of workers, there may be a much clearer wider interest in what they are raising.

The circumstances matter, which is why managers should not try to determine whether something is whistleblowing simply by counting how many people are affected.

Is a Complaint About a Manager Whistleblowing?

If an employee complains that their manager speaks to them disrespectfully, excludes them from meetings or has unfairly criticised their performance, they are likely to be raising a grievance about their own treatment.

If they report that the same manager is deliberately falsifying financial information, concealing serious safety concerns or instructing employees to break the law, the nature of the complaint is very different.

The fact that both complaints concern a manager is irrelevant to the distinction. It is the wrongdoing being reported that matters. Managers should therefore avoid assuming that a serious complaint about another manager must be whistleblowing. Equally, they should not dismiss something as “just a grievance” without first understanding what information the employee is actually providing.

Is Bullying, Harassment or Discrimination Whistleblowing?

An employee complaining about bullying, harassment or discrimination that they have personally experienced will usually raise this through the organisation's grievance procedure.

That does not mean these issues can never form part of a whistleblowing disclosure. The situation may be different where the employee is reporting a wider practice, concerns affecting other workers or information about a breach of legal obligations which they reasonably believe is in the public interest.

For example, there is a difference between an employee saying “my manager has discriminated against me” and an employee reporting information suggesting that an organisation is systematically operating a discriminatory recruitment practice affecting a wider group of people.

The first may primarily be an individual grievance. The second has much clearer potential to involve wider wrongdoing.

Can a Grievance Also Contain Whistleblowing?

Yes. This is one of the most important things for managers to recognise because employee complaints do not always arrive neatly separated into different processes.

An employee might submit a grievance complaining that their manager has excluded them from meetings, treated them unfairly and damaged their working relationships. Within the same complaint, they might explain that this treatment began after they raised concerns about the organisation deliberately breaching safety requirements.

The employer may therefore have two issues to deal with: The employee's grievance about their treatment and the potential whistleblowing disclosure about safety.

Calling the document a grievance does not stop part of it from being a protected disclosure. Equally, an employee putting “whistleblowing complaint” at the top of an email does not automatically turn every personal complaint within it into whistleblowing.

Rather than trying to force the whole complaint into one category, employers should identify the different issues and decide how each needs to be handled.

Does an Employee Have to Say They Are Whistleblowing?

No. Employees do not need to use the words “whistleblowing” or “protected disclosure” when they raise their concern. They might simply tell their manager that they have discovered something worrying, send an email explaining what they believe is happening or raise the issue through another internal route. If the information they provide meets the requirements for a protected disclosure, the fact that they did not know the legal terminology does not prevent it from being protected.

The reverse is also true. Writing “this is a whistleblowing complaint” does not automatically make something whistleblowing. This is why managers need to look at the content of the concern rather than the heading of the email.

Is Disagreeing With a Business Decision Whistleblowing?

Simply disagreeing with a business decision is not whistleblowing. Employees may strongly disagree with a restructure, change of policy, management decision or new way of working. They may even believe the decision is unfair or likely to be unsuccessful. That does not, by itself, mean they are reporting wrongdoing covered by whistleblowing law.

There is a difference between saying “I think this is a terrible decision” and providing information that “I believe this decision will result in the business breaching its legal obligations because…”

The second raises a different question because the employee may be identifying a specific type of wrongdoing rather than simply disagreeing with management judgement.

Does an Employee Need Proof Before They Can Whistleblow?

No. An employee does not need to prove the wrongdoing before they raise the concern. They need to have a reasonable belief that the information they are disclosing shows relevant wrongdoing. The employer may then need to investigate what has been raised to establish what actually happened.

This is an important distinction. Managers should not respond to a concern by saying “you can't prove it, so it isn't whistleblowing.” The employee may be raising the concern precisely because they believe something is wrong and want the organisation to investigate it. An investigation may eventually establish that the employee was mistaken. That does not automatically mean their original disclosure was not protected.

What if the Whistleblowing Concern Is Not Upheld?

Whistleblowing protection does not depend on the employer eventually agreeing with the employee. A worker might raise a genuine concern based on the information available to them, only for an investigation to find that there was an innocent explanation or insufficient evidence to substantiate the allegation.

The employer can conclude that the concern was not upheld without automatically concluding that the employee was wrong to raise it.

This is different from an employee knowingly making a false allegation, which may raise separate concerns depending on the circumstances.

Can You Still Manage an Employee Who Has Whistleblown?

Yes. Whistleblowing protection does not mean an employee becomes immune from normal management. An employee who has made a protected disclosure can still have performance, conduct, attendance or other employment issues. If those concerns are genuine and unrelated to the whistleblowing, the employer can still address them.

However, a worker must not be subjected to a detriment because they have made a protected disclosure, and employees have specific protection against dismissal where the reason, or principal reason, for dismissal is that they have blown the whistle.

This means employers need to be particularly careful where a management issue arises at around the same time as a whistleblowing concern. The manager should be able to clearly explain why action is being taken and demonstrate that it relates to the separate employment issue rather than the employee having raised concerns. Good records are particularly important in these situations.

What Should a Manager Do if an Employee Says They Are Whistleblowing?

The first step is to understand exactly what the employee is raising rather than immediately deciding whether you agree with their use of the word “whistleblowing”.

Look at the information they have provided and identify the wrongdoing they believe has occurred, is occurring or is likely to occur. Consider whether it relates to one of the recognised whistleblowing categories and whether there is a potential public-interest element.

At the same time, identify any concerns that relate specifically to the employee's own treatment. If the complaint contains both, you may need to deal with a grievance and a whistleblowing concern alongside each other.

The important thing is not to get so focused on deciding what to call the complaint that you fail to address what the employee is actually telling you.

Need HR Support?

If an employee has raised a complaint and you're unsure whether it should be treated as a grievance, whistleblowing or potentially both, BloomHR can help.

We provide practical HR advice to help small businesses understand what has been raised and decide how it should be handled. Contact us for more information.