Workplace Safety and Whistleblowing

Posted on September 09, 2020

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Advocate John Aycock of M&P Legal explains how workers who raise concerns about insufficient precautionary measures in the workplace are protected in law.

The importance of employers having a whistleblowing policy has been placed into sharp focus by the current pandemic and its effect on health and safety in the workplace. Savvy employers who transparently work with concerned staff to provide clear lines of communication and reporting will fare much better than employers who pay lip service to the health and safety concerns of staff.

Although the Isle of Man has taken stringent steps to resist COVID-19, the daily diet of fear and risk combined with the Island’s international reach mean that Manx based workers understandably remain wary. Lockdown has left its legacy. There will be far reaching changes to the way we work, facilitated by huge advances in remote technology and the Island’s extension of the flexible working regulations.

For those fortunate enough to be in work, perhaps after a period of furlough, maintaining health and safety when back at work is a paramount consideration. If workers in those circumstances have concerns they must have readily available channels through which to raise them. This is where a workable whistleblowing policy can assist. Workers worried about safety should raise this through the proper channels and have the option of taking matters further through a whistleblowing mechanism. The key legal aspect of doing so is that by raising such concerns the workers gain legal protection against adverse employer action because they have likely made a protected disclosure.

The key ingredients in law of a protected disclosure are that:

It must be a qualifying disclosure and this certainly includes raising a health and safety issue. It will also include highlighting a breach of a legal obligation or environmental damage;

  • The information must be revealed to the right person and in the right way, again a whistleblowing policy can provide for this;
  • The employee must have a reasonable belief as to the truth of the concern even though the concern may not actually be true.

Both employees and workers (that is, certain self employed contractors) can gain whistleblowing protection and no minimum length of service is required. Having blown the whistle, the worker becomes protected in law so that they should not suffer any detriment or be dismissed by reason of making the disclosure. In the current climate, for instance, it is easy to see how an employer considering a redundancy programme to cope with the economic downturn might be perceived as targeting those who had raised concerns about safety in the workplace and the need for extra protection in view of the pandemic. This accentuates the need for employers considering such redundancies to make sure their procedure is transparent, objective and capable of resisting any such whistleblower related claim.

The Isle of Man has already seen instances of employees being unwilling to return to work until a better safety regime was put in place. An employer taking action against such a person runs a significant risk of a detriment or unfair dismissal claim on the part of the whistleblowing employee.

In England there are some cases which shed light on how health and safety concerns might be interpreted in the COVID-19 environment. For instance, the following scenarios might attract whistleblowing protection:

  • If a contractor is not following recommended health and safety practices, a worker could raise that and achieve protection;
  • A worker raising unhygienic office working conditions could disclose that as a health and safety issue and gain protection.

The key therefore is to ensure open communications are in place in accordance with the employer’s whistleblowing policy so as to head off these matters. Listening to workers and employees who have concerns is the starting point. Adherence to a stricter health and safety regime is undoubtedly here to stay for Island employers. Inadequate risk assessment and failing properly to address concerns raised could lead to much more expensive consequences for an employer should an aggrieved worker consider they have suffered detriment or worse because they raised legitimate concerns.

The Isle of Man Courts and Tribunals have already shown they will not hesitate to award substantial compensation to genuine whistleblowing claimants who have suffered detriment or dismissal. In the private sector, a corporate service provider has already been ordered to pay some £600,000 to a whistleblowing former staff member and in the public sector, utilities and the emergency services have also lost Tribunal cases brought by whistleblowing claimants.

Time invested in ensuring proper policies are in place and monitoring adherence to such policies will therefore reap rewards.

Advocate John Aycock is head of the Employment Unit at M&P Legal and has 30 years’ experience of labour law in three jurisdictions.

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